Empire Moving & Storage, Inc.

National Labor Relations Board - Board Decisions

May 28, 1982

261 N.L.R.B. 1341 (N.L.R.B. 1982)

EMPIRE MOVING & STORAGE, INC,
Empire Moving & Storage, Inc. and Local 240, In-
ternational Brotherhood of Teamsters, Chauf-
feurs, Warehousemen and Helpers of America,
Petitioner. Case 29-RC-5545
May 28, 1982
DECISION AND ORDER REMANDING
PROCEEDING
BY' CHAIRMAN VAN DE WATIR AND
MEMBERS FANNING AND HUNTER
Pursuant to authority granted it by the National
Labor Relations Board under Section 3(b) of the
National Labor Relations Act, as amended, a three-
member panel has considered the Regional Direc-
tor's Report on Objections issued on December 10,
1981. The Board has reviewed the record in light
of the exceptions and briefs, and adopts the Re-
gional Director's findings and recommendations
only to the extent consistent herewith. In his
report, the Regional Director recommended that
Petitioner's objections be dismissed for failure to
meet the Board's service requirements. For the fol-
lowing reasons, we reverse that recommendation.
The essential facts as found by the Regional Di-
rector appear undisputed. Pursuant to a Stipulation
for Certification Upon Consent Election executed
by Petitioner and the Employer, an election by
secret ballot was conducted on November 13,
1981.1 The vote was one for, and two against, Peti-
tioner, with one nondeterminative challenged
ballot. Thereafter, on November 16, Petitioner filed
timely objections to the Employer's conduct with
the Board's Regional Office. However, the objec-
tions did not include a statement of proof of serv-
ice of the objections upon the Employer. By letter
dated November 18, the Region acknowledged re-
ceipt of the objections and advised Petitioner of the
requirement to make immediate service on the Em-
ployer.2 On November 23, 3 calendar days and 1
working day after the objections were due, Peti-
tioner served the Employer.3 Thereafter, on De-
' All dates are in 1981 unless noted otherwise
2 Sec. 1026 9(a) of the Board's Rules and Regulations, Series 8, as
amended, provides, in pertinent part, as follows:
Within 5 days after the tally of ballots has been furnished, any party
may file with the regional director an original and three copies of
objections to the conduct of the election or conduct affecting the re-
sults of the election, which shall contain a short statement of the rea-
sons therefor. Such filing must be timely whether or not the chal-
lenged ballots are sufficient in number to affect the results of the
election Copies of such objections shall immediately bh served on the
other parties by the party filing them, and a statement of service shall be
made. The party filing objections shall, upon request, promptly fur-
nish to the regional director the evidence available to it to support
the objections. [Emphasis supplied I
3 To the Regional Director, the Employer had claimed that it had
never received a copy of the objections, but had received only a letter
from Petitioner sltating that objections had been filed In its brief to the
Board, however, the Employer now claims it received at least a "suni-
261 NLRB No. 183
cember 8, the Employer requested the Regional
Director to dismiss Petitioner's objections on the
ground that Petitioner had failed to serve it timely
with a copy of the objections.
In recommending dismissal of the objections, the
Regional Director found that, while Petitioner had
timely filed its objections on the Regional Office, it
nonetheless was 3 days late in serving the Employ-
er, and that it made service on the Employer only
after being advised by the Region of its obligation
to do. He noted that Petitioner offered no reason
for its delay, which it admitted was a matter of in-
advertence. Noting that the fact that the Employer
had suffered no prejudice by this delay was irrele-
vant under prevailing Board law, the Regional Di-
rector recommended dismissing the objections. As
indicated, we reverse.
Our decision here is governed by two consider-
ations. In Alfred Nickles Bakery, Inc.,4 and as reaf-
firmed in Auto Chevrolet, Inc.,5 the Board indicated
that:
[I]n 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 substantially
comply with the requirements of the Rules, or,
alternatively, a valid and compelling reason
why compliance was not possible....
However, as was also indicated in Alfred .Vickles
Bakery, supra, the Board in determining whether
certain objections are timely does not adopt "a
'slavish' adherence to form rather than substance.""6
Applying these two principles here, we think the
Regional Director erred in dismissing the objec-
tions. We note that the objections were, in fact,
timely filed with the Region. There is no showing
of bad faith or of any intent to delay the proceed-
ings in Petitioner's late service of the objections on
the Employer. That service, while 3 calendar days
late, was only I business day late. And Petitioner
immediately served the Employer when it was in-
formed of its oversight in the matter. 7 Indeed, it
served the objections prior to any motion to dis-
miss those objections for untimely service being
filed by the Employer.8 In all these circumstances,
mary" of the objections As the "objections" are, in fact. one paragraph
in length and in summary form, we are satisfied that, on November 23.
the E mployer received a copy of the only "objections" which Petitioner
filed in this proceeding
' 29 NLRB 1058, 1059 (1974).
s 249 Nl RB 529 (1980)
6 209 NI.RB at 1059
Cf .4/lfrd Ni kles/ Bakery, Inc. mupra: High Standard. Inc., 252 Nl RB
4(3, 40), fin 7 See also (;leshy Wholeale., Inc., 259 NI RB 54 (1981)
Cf .4uto (hevrolet. Inc.. supra, Plait Brothers, 250 NLRB 325 (198O)
1341
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
we think the better course here is to accept Peti-
tioner's objections.
Accordingly, we will remand this matter to the
Regional Director for an investigation of Petition-
er's objections and any further action deemed ap-
propriate.
ORDER
It is hereby ordered that this proceeding be, and
it hereby is, remanded to the Regional Director for
Region 29 for investigation of Petitioner's objec-
tions and for any further action deemed appropri-
ate.
MEMBER HUNTER, dissenting:
Contrary to my colleagues, I would affirm the
Regional Director's dismissal of Petitioner's objec-
tions based on its failure to comply with Section
102.69 of the Board's Rules and Regulations, Series
8, as amended. In my view, the Regional Director
properly found that Petitioner failed to show either
"an honest attempt to substantially comply with
the Rules [of service]" or "a valid and compelling
reason why compliance was not possible" within
the time required by the rules.9
The facts are correctly set forth by the majority.
However, while my colleagues note that Petitioner
immediately took steps to effectuate service on the
Employer after being informed by the Regional Di-
rector of its initial failure to do so, my colleagues
fail to observe that Petitioner did not offer any
reason for its initial failure to comply with our
service requirements. In fact, there is no good
reason for that failure since Petitioner admitted to
the Regional Director that it had "inadvertently
failed to [serve the Employer] although it was
aware that such service could be made contempo-
raneously with service to the Board." Notwith-
standing this admission, my colleagues find Peti-
tioner's objections should not be dismissed. They
do so apparently because Petitioner did serve its
objections on the Employer shortly after they were
due; because Petitioner served those objections
promptly after being notified that they had not
been served on the Employer; and because the ob-
jections were, in fact, served before the Employer's
motion to dismiss was filed. However, under cur-
rent Board precedent, and particularly the view ex-
pressed in Auto Chevrolet, supra, all these facts are
irrelevant to a finding that there has been substan-
tial compliance with our Rules.
At the outset, I note that the happenstance that
Petitioner served the objections shortly after they
were due, and before any motion to dismiss was
9 Auto Cwhevrolei, Inc., 249 NLRB 529 (1980), quoting Alfred NVhkl.c
Bakery, Inc., 209 NL RH 1058, 1059 (1974)
filed, is a result of the Regional Office's alertness
rather than of any action by Petitioner. Thus the
Region, in its November 18 letter to Petitioner ac-
knowledging receipt of the objections, informed
Petitioner that service had not been made on the
Employer as required by the Rules. Only then did
Petitioner make service on the Employer. And the
fact that Petitioner quickly served the Employer is
also irrelevant. In sum, I think, the decision points
out anew the pitfall in the Auto Chevrolet approach
to determining the timeliness of objections. That
approach, which calls for a case-by-case determina-
tion of whether a party who has filed late objec-
tions still has made an "honest attempt" to "sub-
stantially comply" with our Rules, has resulted in a
myriad of decisions reaching different results on
facts not significantly different from one another. I
have already set out my views in this area at some
length in Theta Cable of California.10 Certain of
the points I made there, however, bear repeating
here. In Theta Cable, I indicated that:
I can conclude only that the Board's
putative adherence in principle to Auto Chevro-
let, coupled with its apparent willingness to
abandon its application in practice, only leads
to confusion on the part of our regional direc-
tors and the labor bar. For my part, I endorse
as the most sensible route out of this particular
morass the proposal, first advanced by the dis-
sent in Auto Chevrolet, that the regional direc-
tors serve on all parties copies of objections
which have been timely filed with the Region.
Such an approach, already undertaken routine-
ly with respect to unfair labor practice charges
and representation petitions, would require
little additional administrative effort or ex-
pense on the part of Regional Offices but
would save the Regions, the Board, and the
parties considerable time and expenditure
which result from the consideration of cases
such as the instant one. Accordingly, I favor a
revision of our rules to reflect that the Regions
will serve copies of timely objections on all
necessary parties to the election proceeding
and I commend such an approach to my col-
leagues.
I still favor the approach that I outlined in Theta
Cable, supra. Short of this, however, I think adher-
ence to present Board precedent requires finding
that Petitioner's objections were untimely since
they were admittedly served on the Employer after
their due date and there was no excuse offered for
that delay, other than mere inadvertence.
"' 2hl NI RB 1172 (1982).
1342