Coach and Equipment Sales Corp.

National Labor Relations Board - Board Decisions

Nov 17, 1978

239 N.L.R.B. 340 (N.L.R.B. 1978)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Coach and Equipment Sales Corporation and Sheet
Metal Workers' International Association, Local
Union No. 46, Petitioner. Case 3-RC-7215
November 17, 1978
DECISION AND CERTIFICATION OF
RESULTS OF ELECTION
BY CHAIRMAN FANNING AND) MEMBFRS JENKINS
ANI) PFNE.I.(
Pursuant to a Stipulation for Certification Upon
Consent Election, the Regional Director for Region 3
conducted an election by secret ballot in the above-
captioned proceeding among the employees in the
appropriate unit on May 26, 1973. At the conclusion
of the balloting, the parties were furnished a tally of
ballots, which showed that of the approximately 76
eligible voters all 76 cast ballots, and that 35 were
cast for and 38 against the Petitioner. In addition,
three ballots were challenged, an insufficient number
to affect the results of the election.
Subsequently, by letter dated June 23, 1978, the
Petitioner's attorney mailed to the Regional Director
several objections to conduct allegedly affecting the
results of the election. In accordance with Section
102.69(c) of the Board's Rules and Regulations, the
Regional Director then conducted a full investigation
of the Petitioner's objections. On August 1, 1978, the
Regional Director issued his Report on Objections
and simultaneously served a copy thereof on all par-
ties to this proceeding. In his report, the Regional
Director recommended that the Board overrule the
Petitioner's objections in their entirety and that it
certify the results of the election. By letter to the Re-
gional I)irector dated August 8. 1978, the Petitioner's
attorney excepted to certain portions of the Regional
Director's report and urged that the objections be
sustained and that a second election be ordered.
On August 23. 1978, the attorney for the Elmployer
submitted to the Board a motion to dismiss the Peti-
tionel's objections. emphasizing. inter ctlia, that the
objections were never served on either the Emploher
or its attorney. In the alternative, the I:lnploser urges
the Board in its brief to adopt the Regional
L)irector's recommendation that the objections he
overruled on the merits and that the results of the
election be certified. In accordance with Sections
102.69(e) and 102.113(b) of the Board's Rules and
Regulations, Series 8, as amended, the attorney for
the Employer also filed with the Board a Aw;itten
statement of service concerning both its motion to
dismiss and its brief in opposition to the Petitioner's
exception. In that document. the I mplo er's attor-
ney certified that on August 23, 1978, copies of the
Employer's motion and brief were sent by certified
mail both to the Petitioner's attorney and to its busi-
ness agent.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
Based upon the entire record in this case, the
Board makes the following findings:
I. The Employer is engaged in commerce within
the meaning of the Act, and it will effectuate the
purposes of the Act to assert jurisdiction herein.
2. The Petitioner is a labor organization 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)(1) 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 purposes of collective bargaining within the
meaning of Section 9(b) of the Act:
All production, maintenance, stockroom, and
receiving employees employed by the Employer
at its Penn Yan, New York, location; excluding
all office clerical employees, all professional em-
ployees, all guards, and all supervisors as de-
fined in the Act.
5. In its brief in support of its motion to dismiss
the Petitioner's objections, the Employer emphasizes
that the letter in which the Petitioner articulated its
objections to conduct affecting the results of the elec-
tion, which was attached to the Regional Director's
report as Exhibit 1,. contains no indication whatso-
ever that a copy of the objections was sent either to
the ELmploy!er or to its attorney. In support of its mo-
tion, the Employer's attorney also attached an affida-
vit averring, inter a/lita. that he did not acquire knowl-
edge of the contents of the Union's objections until
on or after August 2. 1978, the date on which he
received knowledge of the Regional Director's Re-
port on Objections, and, further, that he has not vet
been served with a cops of the Petitioner's ohJec-
ticins. In addition. the affidavit asserts that the Erm-
ploscr has assured its attorneN that the Uinion has
not served a copN of its obhections on any agent of
the I:mploseri. and that no agent of the Employer
acquired knowledge of the contents of the Union's
objections until the date on which the Employer re-
ceci' ed a cop) of the Regional )irector's report.
I he record before the Board in the instant case
contains neither a statement ol ser, ice nor ans other
evidence w'hich migjht indicate or :uggest that the Pe-
340
COACH AND EQUIPMENT SALES CORPORATION
titioner served a copy of its objections on the Em-
ployer, its agent, or its attorney. In contrast, the letter
by which the Petitioner submitted to the Board its
exceptions to the Regional Director's report indicates
clearly that a carbon copy thereof was mailed to the
Employer's attorney. Furthermore, the record also
contains a memorandum signed by the Petitioner's
attorney averring that a copy of the Petitioner's ex-
ceptions was mailed both to the Employer's attorney
and to the Regional Director, as well as to the Board.
on August 8, 1978. The complete absence of such a
statement with respect to the Petitioner's objections
is striking. Further, the Petitioner has not supplied
the Board with any explanation in response to the
Employer's motion to dismiss the Petitioner's objec-
tions for lack of service thereof.
Therefore, we have concluded that without expla-
nation the Petitioner failed to serve its objections
upon the Employer, in violation of the express re-
quirements of Sections 102.69(a), 102.111, and
102.112 of the Board's Rules and Regulations. As a
direct result of the Petitioner's actions, the Employer
did not receive formal notice of the filing of contents
of the Petitioner's objections until the Regional Di-
rector mailed a copy of his Report on Objections to
the Employer on August 1. 1978, 39 days after the
Petitioner submitted its objections to the Regional
Director.
In light of the Petitioner's total failure to comply
with our rules regarding the service of objections. we
shall grant the Employer's motion to dismiss without
reaching the merits of the Petitioner's objections. In-
asmuch as the Petitioner failed to secure a majority
of the ballots cast in the election herein, we shall
certify the results of the election.
CERTIFICATION OF RESULTS OF ELECTION
It is hereby certified that a majority of the valid
ballots have not been cast for Sheet Metal Workers'
International Association, Local Union No. 46, and
that said labor organization is not the exclusive rep-
resentative of all the employees, in the unit herein
involved, within the meaning of Section 9(c) of the
Act.
341