Theta Cable of California

National Labor Relations Board - Board Decisions

May 28, 1982

261 N.L.R.B. 1172 (N.L.R.B. 1982)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Theta Cable of California and International Alliance
of Theatrical Stage Employees and Moving Pic-
ture Machine Operators of the United States
and Canada, AFL-CIO, Petitioner. Case 31-
RC-5141
May 28, 1982
DECISION AND CERTIFICATION OF
REPRESENTATIVE
BY MIEMMBIRS FANNING, JI NKINS, ANI)
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 September 25,
1981.' The Board has reviewed the record in light
of the exceptions and brief, and hereby adopts the
Regional Director's findings and recommendations
as modified herein.
The Regional Director recommended that the
Employer's objections be rejected in their entirety
on the ground that they were not served on the
Petitioner in compliance with Section 102.69 of the
Board's Rules and Regulations, Series 8, as amend-
ed, which requires, inter alia, that immediate serv-
ice of copies of the objections be made on all nec-
essary parties to the election. Alternatively, should
the Board not adopt his recommendation on the
service issue, the Regional Director recommended
that the Employer's objections be overruled in
their entirety on the merits. For the reasons set
forth below, we reverse the recommendation that
the objections should be dismissed for failure of
proper service but we affirm the Regional Direc-
tor's recommendation to overrule the objections on
the merits. 2
The facts as related in the Regional Director's
report indicate that, on June 16, 1981,3 Local 695
IATSE filed a petition for election in Case 31-RC-
5121, involving certain employees of the Employer.
On June 22, Local 659 IATSE likewise filed an
election petition covering employees of the Em-
ployer. Both of these petitions were then with-
drawn on July 9, and Petitioner IATSE, on that
date, filed the instant petition, upon which the elec-
tion was conducted on August 18. Thereafter,
within the allotted time, the Employer served its
t The election was held pursuant to a Stipulation for Certification
Upon Consent Election. The tally was 20 votes for, and 0 votes against,
the Petitioner, there were 7 challenged ballots, an insufficient number to
affect the results of the election.
2 The Employer filed four objcctions to the election. in the absence of
exceptions to the Regional Director's recommended disposition of ()bjec-
tions 2, 3, and 4, we adopt pro forma the recommendation that those ob-
jections be overruled.
:' All dates are in 1981 unless noted otherwise
objections to the election on the Regional Office.
However, a copy of the objections was mistakenly
served on Local 695 of the Petitioner rather than
on the Petitioner itself. Subsequently, the Petitioner
informed the Regional Office that it had not re-
ceived a copy of the Employer's objections, and
the Regional Office, in turn, informed the Employ-
er of that fact on September 4. On that date, the
Employer then served a copy of the objections on
the Petitioner itself, some 10 days after the deadline
for the receipt and service of all objections.
With respect to the reasons for the Employer's
service of the objections on the wrong party, the
Regional Director's investigation revealed that, on
the evening of August 24, the day before the objec-
tions were due, the Employer's attorney, who was
scheduled to be out of town to conduct unrelated
business on August 25, instructed his secretary to
type the objections the next day; then to have them
reviewed; and finally to serve them "on the Union"
on August 25. Thereafter, in preparing the proof of
service and in serving the objections, the attorney's
secretary concluded that she should serve the ob-
jections on Roy M. Brewer, a representative of
Local 695 of the Petitioner, because the firm's cor-
respondence and pleadings material contained a
copy of a petition filed by Brewer in the above-
mentioned Case 31-RC-5121, which appeared to
her to be the most recent petition relating to the
Employer. The material did contain an undated
copy of the petition involved here, but it did not
contain the Board's dated and numbered copy of
the instant petition, which, in fact, had been served
on the Employer by the Regional Office, and it did
not contain certain other documents pertaining to
the instant proceeding.
Based on the above facts, the Regional Director
concluded that the Employer had failed to comply
substantially with the Board's rules regarding the
service of objections. In excepting, the Employer
contends that an honest attempt was made to
comply substantially with the requirements of the
rules, and that service was in fact made upon the
Petitioner as soon as the error in service was
brought to the Employer's attention.
In Auto Chevrolet, Inc.,4 the Board reaffirmed the
principles enumerated in Alfred Nickles Bakery,
Inc.,5 that in order to support a variance or devi-
ation from the clear requirements of our rules the
objecting party must show "an honest attempt to
substantially comply" with the Board's rules on the
service of objections. The Employer did timely file
its objections with the Region and also timely
4 249 NLRB 529 (1980).
20)9 NLRB 1058 (1974).
261 NLRB No. 175
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THETA CABLE OF CALIFORNIA
served its objections on the party it thought to be
the petitioner in this proceeding. While it was in
error in this latter regard, that error was deemed
an "honest mistake" by the Regional Director him-
self, and that error appears to have had its genesis
in the contemporaneous withdrawal of certain peti-
tions by locals of the Petitioner and the filing of
the instant petition by the Petitioner. We cannot
say that this unusual occurrence could not have
created some confusion for the attorney's secretary
who had to sort out the identity of the correct peti-
tioner from the Employer's file. That the secretary
erred was due to clerical inadvertence rather than
any disregard for the Board's rules. Further, we
note that, once the Regional Director notified the
Employer that its attempted service had been un-
successful, the Employer took immediate steps to
effectuate proper service on the Petitioner. 6
Therefore, in all the above circumstances, we
think the Employer's objections should be consid-
ered. 7 Accordingly, we reverse the Regional Di-
rector's recommendation to reject the Employer's
objections. Further, having considered the merits
of Objection 1, which is the only objection before
us, and the Regional Director's discussion of the
merits of that objection, we adopt the Regional Di-
rector's recommendation to overrule the objec-
tion. 8 Accordingly, we shall certify the Petitioner.
CERTIFICATION OF
REPRESENTATIVE
It is hereby certified that a majority of the valid
ballots have been cast for International Alliance of
Theatrical Stage Employees and Moving Picture
Machine Operators of the United States and
Canada, AFL-CIO, and that, pursuant to Section
9(a) of the Act, the foregoing labor organization is
the exclusive representative of all the employees in
the following apropriate unit for the purpose of
collective bargaining with respect to rates of pay,
6 Member Fanning also relies on his separate statement in Ifigh Stand-
ard, Inc., 252 NLRH 403 at 405, fn 7 (1980)
7 Cf. Glesby Wholesale, Inc., 259 NLRB 54 (1981). Member Jenkins
finds Gleshy Wholesale plainly distinguishable There, unlike here, there
was no attempt at service and in his view the employer demonstrated a
disregard of the Board's requirements rather than an honest attempt to
comply substantially therewith Similarly, the other cases relied on by
Member Hunter are factually irrelevant
I The Employer argues that the Regional Director erred by conclud-
ing that the Employer relied on NL.R.B. v. Savair Manufacturing Com-
pany, 414 U.S. 270 (1973), in asserting that its Objection I should be sus
tained We find it unnecessary to resolve this contention concerning the
Regional Director's characterization of the Employer's position From
the facts set out in the Regional Director's report, it is clear that there
was a waiver of initiation fees in this proceeding which was not condi-
tioned on whether the employees joined the Petitioner prior to the elec-
tion Therefore, whether the initiation fee which was to be waived was
that of a local of the Petitioner rather than the Petitioner's own fee is
irrelevant We find the objected-to statement was a legitimate organizing
device and not-as the Employer argues-an impermissible bribe
wages, hours of employment, and other terms and
conditions of employment:
All studio employees employed in the produc-
tion of video tape programs, in maintenance
and in broadcast engineering, employed at the
Employer's Santa Monica and Ontario, Cali-
fornia, facilities, but excluding all supervisors,
guards, clerical employees, janitors and em-
ployees in the department known as "Public
Access."
MEMBER HUNTER, concurring:
Contrary to the Regional Director, my col-
leagues conclude that the Employer made "an
honest attempt to substantially comply" with the
Board's rules on service of objections and hence
that the objections should be considered on the
merits. However, they agree with the Regional Di-
rector's further conclusion that the objections, once
considered, do not warrant setting aside the elec-
tion or require a hearing. Accordingly, they over-
rule the objections and issue a certification of rep-
resentative.
I agree with my colleagues that a certification of
representative should issue9 in this case but I be-
lieve that, in finding the objections untimely for
failure of proper service, the Regional Director did
no more than follow current Board precedent as il-
lustrated by the line of cases following Auto Chev-
rolet, Inc., 249 NLRB 529 (1980). °
My colleagues' effort to avoid the application of
Auto Chevrolet here by straining to distinguish the
instant case on its facts succeeds only in one re-
spect. Namely, they demonstrate the unworkability
of the standard set forth in Auto Chevrolet, a stand-
ard which requires that the timeliness of service of
objections turns on such elusive concepts as
"honest attempt" and "substantial compliance."
Indeed, if our experience with the approach en-
dorsed by Auto Chevrolet shows anything, it shows
that in practice these concepts mean different
things to different Board Members and all without
much regard for harmonizing the different results
reached by panels in factually similar cases.
Perhaps nothing better illustrates the validity of
this criticism of the Auto Chevrolet approach than
an examination of Glesby Wholesale, Inc., 259
NLRB 54 (1981), a case relied on by at least one
member of the majority here in support of the con-
clusion that this Employer's objections should be
considered. There, as here, the employer relied on
"clerical inadvertence" to excuse noncompliance
I ike the Regional Director and my coilleagues I find the objections
do not warrant sciting aside the electionl or directing a hearing
"' See, for example. Platt Brorthrs, 25) NI. RH 25 (190), iant lhlgh
Standard. Inc., 252 Ni RH 403 (14Xl))
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
with the service requirements of Section 102.69 of
the Board's Rules. Although a majority of the
panel agreed, it is worthy of note that a dissenting
opinion was filed by Member Jenkins, a member of
the original Auto Chevrolet majority, pointing out
that the result reached in Glesby was inconsistent
with decisions following Auto Chevrolet, including
the decision reached in Platt Brothers, supra. See
also Alleghany Warehouse Company, Inc., and Star
Warehouse Corporation, 256 NLRB 44 (1981), in
which Member Jenkins, again in dissent, pointed
out that the majority's refusal to apply Auto Chev-
rolet to the facts of that case was inexplicable given
that Auto Chevrolet had been applied in High Stand-
ard, supra, a case which was on all fours with the
facts considered in Alleghany. 1
I In spite of the position he set out in Glesbv supra, Member Jenkins
now finds that case distinguishable from this one, but the distinction is
ephemeral In Glehby, where Member Jenkins would have dismissed the
objections, the employer in good faith believed he had properly served
the union but, in fact, had not, due to clerical inadvertence Hlere, the
Employer also in good faith believed it had served the Petitioner hut, in
fact, had not, also due to clerical inadvertence The only difference in the
two situations is that in Glesbyv the employer ended tip serving no party,
other than the Regional O()ffice, while here the Employer served the
wrolng party, along with the Regional ()ffice. This is a distinction with-
out a difference, and Member Jenkins' observation that in Glesbv there
In sum, I can conclude only that the Board's pu-
tative adherence in principle to Auto Chevrolet,
coupled with its apparent willingness to abandon
its application in practice, only leads to confusion
on the part of our regional directors 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 dissent in Auto Chevrolet, that
the regional directors serve on all parties copies of
objections which have been timely filed with the
Region. Such an approach, already undertaken rou-
tinely with respect to unfair labor practice charges
and representation petitions, would require little
additional administrative effort or expense on the
part of Regional Offices but would save the Re-
gions, the Board, and the parties considerable time
and expenditure which result from the considera-
tion 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 colleagues.
was "no attempt at service" is wide of the mark Rather, in Glesby, just as
here, the employer thought there had been proper service but that serv-
ice had failed.
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