Croft Metals, Inc.

National Labor Relations Board - Board Decisions

Jun 21, 2002

337 N.L.R.B. 688 (N.L.R.B. 2002)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 688
Croft Metals, Inc. and International Brotherhood of
Boilermakers, Iron Shipbuilders, Blacksmiths,
Forgers and Helpers, AFL–CIO, Petitioner.
Case 15–RC–8393
June 21, 2002
DECISION ON REVIEW
BY CHAIRMAN HURTGEN AND MEMBERS COWEN
AND BARTLETT
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel,
which has considered the Employer’s request for review
of the Acting Regional Director’s Decision and Direction
of Election. The Employer’s request for review is
granted as it raises a substantial issue warranting review
solely with respect to the adequacy of notice of hearing
provided to the Employer. Having carefully considered
the matter in light of the undisputed facts and the Em­
ployer’s request for review, we find that the Acting Re­
gional Director erred in finding that the Employer had
been given sufficient notice of the hearing. Accordingly,
we remand this case to the Acting Regional Director to
reopen the hearing.1
The Petitioner seeks to represent production and main­
tenance employees at the Employer’s Magnolia facility
in McComb, Mississippi. It is undisputed that the Peti­
tioner filed the instant petition on April 5.2 It is also un­
disputed that on Wednesday, April 10, the Employer
received notice from the Regional Office that a hearing
would be held on Monday, April 15. At the beginning of
the hearing, the Employer objected to the inadequacy of
the notice, contending that it had inadequate time to in­
terview witnesses and to prepare for the hearing. Despite
this objection, the Employer went forward at the hearing
and presented evidence supporting its argument that its
leadmen should be excluded from the unit as statutory
supervisors, that its interplant driver had a community of
interest separate from the production and maintenance
employees, and that several other employees should be
excluded as “office clericals.” Prior to the hearing’s
conclusion, the Employer requested that the hearing re-
main open so that it might present additional evidence.
The Employer also made an offer of proof outlining the
1 In addition to its notice arguments, the Employer argued on review
that the Acting Regional Director erred by (1) finding that its leadmen
and load supervisor were not statutory supervisors, (2) including mate-
rial inventory clerks in the petitioned-for production and maintenance
unit as “plant clericals,” (3) voting three other clerical employees under
challenge, (4) including the interplant driver in the unit found appropri­
ate, and (5) failing to find that Carpenter’s Local 2280 had not been
given proper notice of the hearing. Because we are remanding this
matter for further hearing, we do not pass on these issues at this time.
2 Unless otherwise stated, all dates are 2002.
evidence it would provide if its request to reopen the
hearing were granted. The hearing officer denied the
request and closed the hearing. The Acting Regional
Director affirmed the hearing officer’s ruling, finding
that the Employer was provided adequate notice of the
hearing.
We disagree. Although, the Board has never explicitly
set a minimum notice requirement in representation
cases, the NLRB Casehandling Manual suggests that
Regional Directors provide parties with 5 days’ notice of
a hearing, in the absence of “unusual circumstances.”
We believe that the suggestion of the Manual makes
good sense. Accordingly, we have decided to make it a
requirement. We will require that parties to a representa­
tion case must receive at least 5 days’ notice of the hear­
ing date, absent unusual circumstances or clear waiver by
the parties. Further, because this period of time is less
than 7 days, intermediate Saturdays, Sundays, and holi­
days are excluded in the computation. Section
102.111(a) of the Board’s Rules and Regulations.
Here, the Employer was served on Wednesday, April
10, for a hearing to begin on Monday, April 15. Exclud­
ing the intervening Saturday and Sunday, the Employer
was given only 3 days’ notice of the hearing. In the ab­
sence of unusual circumstances or waiver by the parties,
we conclude this notice was insufficient.3
In sum, we hold that parties in representation cases
must receive notice of a hearing not less than 5 days
prior to the hearing, excluding intervening weekends and
holidays. By providing parties with at least 5 working
days’ notice, we make certain that parties to representa­
tion cases avoid the Hobson’s choice of either proceed­
ing unprepared on short notice or refusing to proceed at
all. In the absence of sufficient notice, we remand this
matter to the Acting Regional Director to reopen the
hearing to receive additional evidence on the issues
raised by the Employer.
3 The Acting Regional Director neither articulated any “unusual cir­
cumstances” justifying less than the minimum 5 days’ notice nor found
that the Emplo yer had clearly waived its notice rights.
337 NLRB No. 106