Excalibur Extrusions, Inc.

National Labor Relations Board - Board Decisions

Oct 11, 1989

296 N.L.R.B. 1292 (N.L.R.B. 1989)

1292 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Excalibur Extrusions , Inc. and United Rubber,
Cork, Linoleum and Plastic Workers of Amer-
ica, AFL-CIO, Petitioner . Case 21-RC-18314
October 11, 1989
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
CRACRAFT AND HIGGINS
The National Labor Relations Board , by a three-
member panel , has considered exceptions to the
Regional Director 's Report on Objections to an
election conducted on October 28, 1988 ,1 pursuant
to a Stipulated Election Agreement. The tally of
ballots shows 27 for and 16 against the Petitioner,
with 3 challenged ballots, an insufficient number to
affect the results.
The Board has reviewed the record in light of
the exceptions and brief and, for the reasons that
follow , does not adopt the Regional Director's rec-
ommendation.
On November 4, the Employer timely filed ob-
jections to the election . In a letter dated November
4, the Regional Office informed the Employer of
its obligation to furnish timely evidence in support
of its objections . The deadline for submission of the
evidence was November 14. When no evidence
was submitted , the Regional Director recommend-
ed that the objections be overruled. On November
16, the Employer 's evidence in support of its objec-
tions was received in the Regional Office . In its ex-
ceptions , the Employer alleges that a Board agent,
or agents , indicated to the Employer's counsel that
the time for submitting evidence was extended until
November 16.
Section 102 .69(a) of the Board's Rules and Regu-
lations states that a party filing objections must
supply evidence in support of objections "[w]ithin
7 days after the filing of objections, or such addi-
tional time as the Regional Director may allow.
99
Regarding procedural issues that are a creature
of Board policy, a party may be "justified in rely-
ing upon the word of a responsible agent of the
Board ." Sherry & Gordon Co., 107 NLRB 113, 114
(1953).2 Accordingly , we shall remand this pro-
ceeding to the Regional Director to determine
whether , as the Employer alleges, a Board agent,
or agents, before the expiration of the 7-day period,
indicated to the Employer's counsel that the time
for submitting evidence was extended until Novem-
ber 16.
In so remanding , we are not departing from the
requirement that evidence must be timely submit-
ted. To the contrary, the remand accords with that
requirement because it is aimed at determining
whether the Region timely exercised the discretion
afforded by Section 102 .69(a) to permit additional
time for the submission of evidence . As such, it is
in harmony with the need for strict and uniform
application of our procedural rules , whether the
rule, as here , pertains to the submission of evidence
in support of objections or, in another case, the
filing of objections themselves .3 In either event, in
applying our rules we cannot ignore matters of due
process that clearly fall within the intendment of
those rules , and that is the situation presented in
this case.
Finally, the remand is consistent with Star Video
Entertainment , 290 NLRB 1010 (1988 ). In that case
a Board agent gave the Petitioner an extension of 2
days in which to submit evidence , but the Petition-
er did not comply with the extended deadline.
Here , if the facts are as the Employer alleges, the
Employer did comply with the extended deadline.
Accordingly, we will remand this proceeding to
Region 21 to detetmine whether the Region timely
granted the Employer an extension of time to
submit its supporting evidence .4 If the facts are as
alleged by the Employer, the Region shall accept
the evidence in support of the Employer's objec-
tions as timely filed and determine the merits.
ORDER
The National Labor Relations Board orders this
proceeding be remanded to Region 21 to determine
whether the Region timely granted the Employer
an extension of time to submit its supporting evi-
dence. At the discretion of the Regional Director,
the Region may conduct further investigation or
may proceed to a hearing.
All dates are 1988 unless otherwise specified
x The Board has distinguished Sherry & Gordon on grounds not appli-
cable here , but has never overruled the gist of its holding See, e g , Hein-
rich Motors, 166 NLRB 783, 790 (1967) (Sherry & Gordon not controlling
because "nobody" had authorized the action in question ), Campbell Soup
Co., 152 NLRB 1645, 1648 ( 1965) (no genuine authorization because of
requirement that settlement authorization be in writing ), and Stokely-
Bordo, 130 NLRB 869, 871 (1961 ) (statement by Board agent not binding
because it did not involve matter within agent 's knowledge and did not
concern a proceeding before the Board)
0 For the difference between the filing of objections themselves and
the filing of evidence in support of objections, see Kano Trucking Service,
295 NLRB 514 (1989)
4 Such a finding would not be inconsistent with Public Storage, 295
NLRB 1034 (1989), in which the Board found that the Regional Director
improperly accepted evidence after the deadline expired without the peti-
tioner's having requested an extension of time This was not the exercise
of discretion of the kind contemplated by the rule Compare with the in-
stant case , which if the facts are as alleged by the Employer, is exactly
the type of discretion contemplated by the rules.
296 NLRB No. 159