Goody's Family Clothing

National Labor Relations Board - Board Decisions

Aug 10, 1992

308 N.L.R.B. 181 (N.L.R.B. 1992)

181
308 NLRB No. 49
GOODY’S FAMILY CLOTHING
1 All dates are in 1992 unless otherwise indicated.
2 Sec. 102.111(b) states that ‘‘the Board will accept as timely filed
any document which is hand delivered to the Board on or before
. . . the due date or postmarked on the day before (or earlier than)
the due date; documents which are postmarked on or after the due
date are untimely. ‘Postmarking’ shall include timely depositing the
document with a delivery service.’’ Here, the Employer’s evidence
was received 1 day late. Further, the submission was not timely
under the ‘‘postmark’’ rule because the documents in question were
not ‘‘postmarked’’ until the due date.
3 We also reject the Employer’s contention that its failure to re-
ceive the Regional Director’s January 16 letter until after the due
date excuses it from its obligation to comply with Sec. 102.69(a) of
the Board’s Rules and Regulations. The Board has held that the ab-
sence of a ‘‘reminder letter’’ from the Regional Office does not re-
lieve the objecting party of its obligation to timely file the evidence
in support of its objections. Public Storage, 295 NLRB 1034 (1989).
Goody’s Family Clothing, Inc. and Amalgamated
Clothing & Textile Workers Union (ACTWU),
AFL–CIO, CLC, Petitioner. Case 10–RC–14195
August 10, 1992
DECISION AND CERTIFICATION OF
REPRESENTATIVE
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND OVIATT
The National Labor Relations Board, by a three-
member panel, has considered objections to an election
held January 9, 1992,1 and the Regional Director’s re-
port recommending disposition of them. The election
was conducted pursuant to a Stipulated Election
Agreement. The tally of ballots shows 75 for and 65
against the Petitioner, with 9 challenged ballots, an in-
sufficient number to affect the results.
The Board has reviewed the record in light of the
exceptions and briefs, has adopted the Regional Direc-
tor’s findings and recommendations, and finds that a
certification of representative should be issued.
On January 16, 1992, the Employer timely filed ob-
jections to the election. Pursuant to Section 102.69 of
the Board’s Rules and Regulations, the Employer had
until the close of business on January 23 to furnish its
evidence in support of the objections. On January 23,
the Employer submitted this evidence to a delivery
service for next day delivery. The evidence was re-
ceived by the Regional Office on January 24.
On February 6, the Regional Director issued his Re-
port on Objections in which he recommended to the
Board that the Employer’s objections be overruled be-
cause the supporting evidence was not timely submit-
ted, as required by the Board’s Rules and Regula-
tions.2
In its exceptions, the Employer argues that the Re-
gional Director should have exercised his broad admin-
istrative discretion and accepted the Employer’s un-
timely submission of evidence in light of the Employ-
er’s ‘‘good faith belief that the evidence was due to be
submitted on January 24.’’ In counting the days from
the filing of the objections on January 16, counsel for
the Employer did not include the Martin Luther King,
Jr. holiday, which fell on Monday, January 20. The
Employer contends that the count was based on a
good-faith interpretation of the Board’s regulations and
that the receipt of the evidence on January 24 was not
an attempt to delay the orderly procedures of the
Board and would result in no prejudice. The Employer
also claims that it did not learn of the Board’s time
limitations rule until receiving a letter from the Re-
gional Director on January 29, stating that the due date
for evidence in support of its objections was January
23. This letter was mailed from the Regional Office on
January 16.
For the reasons stated below, we agree with the Re-
gional Director that the Employer’s evidence was un-
timely filed. Section 102.69(a) of the Board’s Rules
and Regulations provides that the party filing objec-
tions shall furnish supporting evidence ‘‘[w]ithin 7
days after the filing of objections.’’ Section 102.111(a)
of the Board’s Rules and Regulations explains the
computation of time as follows:
In computing any period of time prescribed or al-
lowed by these rules, the day of the act, event, or
default after which the designated period of time
begins to run is not to be included. The last day
of the period so computed is to be included, un-
less it is a Saturday, Sunday, or a legal holiday,
in which event the period runs until the official
closing time of the receiving office on the next
Agency business day. When the period of time
prescribed or allowed is less than 7 days, inter-
mediate Saturdays, Sundays, and holidays shall be
excluded in the computation.
Accordingly, when the period of time allowed is 7
days, as here, intermediate Saturdays, Sundays, and
holidays are included in the computation. The Employ-
er’s asserted belief that the Martin Luther King, Jr.
holiday is not included in the time computation is con-
trary to the clear and unambiguous meaning of the
Board’s rules.3
Our dissenting colleague would direct the Regional
Director to accept the evidence and consider the merits
of the objections based on his view that when a holi-
day occurs during the first 6 days of a 7-day filing pe-
riod, parties should be allowed an extra day, as they
are when the holiday falls on the seventh day. He
notes that the Employer would have had at most 4 full
days to prepare its submission, a result that he finds
to be contrary to the Board’s intent when it revised the
time limits in 1986 to lengthen the period for filing in
representation cases.
The Board has previously considered and rejected
the approach advocated by the dissent. In Drum Li-
182 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 Unless otherwise noted, all subsequent dates shall be in 1992.
2 ‘‘[V]irtually all the periods for filing papers with the Board have
been expanded to provide for additional time for filing . . . .’’
Board’s summary of rules changes, 51 Fed.Reg. 23744 (1986),
quoted in Drum Lithographers, 287 NLRB 22, 23–24 (former Mem-
ber Cracraft, diss.) (1987), overruled on other grounds, John I. Haas,
Inc., 301 NLRB 300 (1991).
thographers, 287 NLRB 22 (1987), the full Board,
over the dissent of Member Cracraft, declined to ex-
tend the due date by 1 day when a holiday fell during
the first 6 days of the 7-day period for filing objec-
tions. The Board recognized that the available number
of working days in the filing period was reduced, but
stated that ‘‘we do not believe that such a relatively
unusual circumstance overrides the desirability of sim-
plicity, clarity, and uniformity in formulating proce-
dural rules.’’ Id. at fn. 7.
With respect to John I. Haas, Inc., 301 NLRB 300
(1991), cited by our dissenting colleague, we note that
it overruled Drum only insofar as Drum refused to
apply the ‘‘postmark’’ rule to the filing of objections.
Haas did not disturb the separate holding of Drum that
the Board will not carve out an exception to its rules
in instances when a holiday falls during the first 6
days of a 7-day filing period. Indeed, Haas did not
even discuss the effect of an intervening holiday be-
cause the facts of that case did not present the issue.
Subsequent to the issuance of Haas, a Board majority
again rejected the argument that a 7-day filing period
should be extended to allow for an intervening holiday.
Medi-Center of America HBA Corp., 301 NLRB 680
(1991). Accordingly, it is clear that Drum’s holding on
the holiday issue remains good law, and we reaffirm
it today.
Because the Employer’s evidence was not submitted
to the delivery service until the due date and was not
received by the Regional Office until the day after the
due date, we find that the evidence was untimely filed.
Accordingly, we adopt the Regional Director’s rec-
ommendation to overrule the Employer’s objections
and issue a certification of representative.
CERTIFICATION OF REPRESENTATIVE
IT IS CERTIFIED that a majority of the valid ballots
have been cast for Amalgamated Clothing & Textile
Workers Union (ACTWU), AFL–CIO, CLC, and that
it is the exclusive collective-bargaining representative
of the em‘loyees in the following appropriate unit:
All full-time and regular part-time hourly paid
employees employed by the Employer at its
Knoxville, Tennessee distribution center, but ex-
cluding all office clerical employees, store mainte-
nance employees, store operation employees,
truck drivers, guards, managers and all other su-
pervisors as defined in the Act.
MEMBER DEVANEY, dissenting.
I disagree with my colleagues’ decision to adopt the
Regional Director’s recommendation that the Employ-
er’s timely objections be overruled because the Em-
ployer’s attorney submitted the supporting evidence to
the Region 1 day after the due date. Rather, I would
direct the Regional Director to accept the evidence and
to consider the merits of the objections. In my view,
when a holiday occurs during the first 6 days of a 7-
day filing period, parties should be accorded the full
time period, as they are when the holiday falls on the
seventh day. The facts of this case illustrate the desir-
ability of this type of approach rather than the current
rule.
On January 24, 1992,1 the Regional Office received
evidence from the Employer in support of its timely
objections, filed on January 16, to a January 9 election.
The Employer had delivered the evidence on January
23 to a courier service with guaranteed next day deliv-
ery. On January 29, the Employer received a letter
from the Regional Office, postmarked January 16, stat-
ing that the deadline for submission of evidence was
January 23. On February 6, the Regional Director
issued his Report on Objections in which he rec-
ommended overruling the Employer’s objections in the
absence of timely submitted evidence by the Employer.
The Employer’s attorney stated in a sworn affidavit
that she had dispatched the evidence on January 23 in
a good-faith belief that the submission was timely
under Section 102.69(a) of the Board’s Rules and Reg-
ulations, as she had not counted the January 20 Martin
Luther King, Jr. holiday, on which the Board’s offices
are closed, as one of the days in the 7-day period the
rule prescribes. Nothing in the submissions before us
supports an inference that the 1-day delay prejudiced
any party’s interest.
To meet the deadline under the majority’s reading of
Section 102.69, the Employer would have had to mail
its evidence on January 22, or, at the latest, submit the
evidence to a courier on January 23 for same day de-
livery to the Regional Office. Thus, the Employer, if
it had used the mails, would have had only 3 full
working days after the objections were due (Thursday,
January 16, Friday, January 17, and Tuesday, January
21), to prepare its submission and, at most, 4 full days
by using a courier. Such a result contradicts the intent
of the Board’s 1986 revision of certain time limits in
the Rules, which was, in part, to lengthen the period
for filing in representation and other types of cases.2
The circumstance presented here, i.e., the occurrence
of a holiday on one of the first 6 days of the filing
period, is the only one where the revision of Section
102.69 actually shortened the filing period from 5
working days under the pre-1986 rule to, in effect, 3
working days.
I recognize that the Board’s Rules are designed to
encourage orderly procedures, however, the Board also
183GOODY’S FAMILY CLOTHING
3 Under Drum Lithographers, the Board rejected as untimely sub-
missions not actually received in the Board’s office by the due date.
4 301 NLRB 300, supra at fn. 5.
has a strong interest in facilitating access to its proc-
esses and consideration of cases on their merits. In
John I. Haas, supra, the Board overruled Drum Lithog-
raphers, supra, and returned to a ‘‘one day prior post-
mark rule’’ under which submissions postmarked the
day before the due date are considered timely. In so
doing, the Board tacitly acknowledged that the Drum
Lithographers rule3 reduced the number of working
days for the preparation of submissions to the Board.4
In my view, this same realistic acknowledgement
should be made here, where the vagaries of the cal-
endar have the effect of reducing the amount of time
for filing as the vagaries of the mails did in Haas,
supra. Additionally, in my view, the Board’s rules and
interpretations of them should not unnecessarily deny
access to the Board’s processes to parties, such as the
Employer here, acting in good faith and diligence, and
where, as here, no prejudice to the opposing party or
to the Board’s processes has been shown.
Accordingly, contrary to my colleagues, I would re-
mand this proceeding to the Regional Director for con-
sideration of the Employer’s evidence in support of its
objections and a determination of the objections on
their merits.