Auto Chevrolet, Inc.

AUTO CHEVROLET, INC. Auto Chevrolet, Inc. and United Steelworkers of America, AFL-CIO. Case 24-RC-6281 May 15, 1980 DECISION AND CERTIFICATION OF RESULTS OF ELECTION The National Labor Relations Board has considered objections to and determinative challenges in an election conducted on March 30, 1979,1 and the Regional Director's report recommending disposition of the same. The Board has reviewed the record in light of the exceptions and briefs and hereby adopts the Regional Director's findings and recommendations.² The election was conducted pursuant to a Stipulation for Certification Upon Consent Election. The tally furnished the parties at the close of the ballot count showed 11 votes for, and 13 against, the Union, with 3 challenged ballots. On April 6, the Petitioner, herein also called the Union, timely filed objections but did not serve them on the Employer's counsel until April 17. In the interim, on April 11, the Employer filed a motion to reject the objections with the Regional Director. The Regional Director found that the Petitioner had failed to comply with the requirement of Section 102.69(a) of the Board's Rules and Regulations, Series 8, as amended, that "Copies of such objections shall immediately be served on the other parties by the party filing them, and a statement of service shall be made."3 Accordingly, and citing Alfred Nickles Bakery, Inc., 209 NLRB 1058 (1974), the Regional Director recommended that the Employer's motion be granted. In Alfred Nickles, supra, the Board concluded 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 4 The Union, in excepting to the Regional Director's recommendations, argues that (1) the Employer was advised by the Regional Office via a telegram dated April 9 that the Union was filing objections and, thus, could have called the Union if it had not received a copy, and (2) "when the Union 1 All dates hereinafter are 1979 unless otherwise indicated. 2 In the absence of exceptions, we adopt, pro forma, the Regional Director's recommendation that the challenges to the ballots of Edwin Perez, Ramon Manuel Rodriguez, and Jorge Luis Torres be sustained. 3 We note that the record herein does not indicate that Petitioner ever filed such a statement of service. representative knew that the Employer was alleging a copy of the objections were [sic] not sent to them, he personally took a copy to the Employer's secretary.' Assuming, arguendo, the truth of these allegations, we find that the Petitioner has established neither "an honest attempt to substantially comply"6 with the service requirement nor "a valid and compelling reason why compliance was not possible" and we conclude therefore that the Petitioner has not justified its failure to comply with the requirements of Section 102.69(a).⁷ Our dissenting colleague contends that the Board's Rules should be changed so as to provide that regional offices will serve copies of objections, which the dissent contends is the procedure followed for service of charges in unfair labor practice proceedings, quoting a portion of Section 102.14 of the Board's Rules and Regulations, Series 8, as amended. This Rule specifies as follows: Upon the filing of a charge, the charging party shall be responsible for the timely and proper service of a copy thereof upon the person against whom such charge is made. The regional director will, as a matter of course, cause a copy of such charge to be served on the person against whom the charge is made, but he shall not be deemed to assume responsibility for such service. Thus, a reading of Section 102.14 in its entirety demonstrates that service of charges by regional directors is a courtesy only, and does not diminish the responsibility of charging parties to insure that service is accomplished. Furthermore, although the Rules acknowledge, but do not require service by the regional directors of charges (which, of course, initiate unfair labor practice proceedings), no similar provision is included in the sections of the Rules which specify the procedures to be followed in filing answers to complaints, motions, excep- 5 The Union does not indicate when its representative delivered a copy of the objections to the Employer's secretary and the Employer contends that such service as occurred was limited to its counsel on April 17. 6 Our finding that the Petitioner failed to show "an honest attempt to substantially comply with" the Board's requirements does not signal a return to an inflexible definition of "immediately." We do not suggest that, in all circumstances, a few days' delay will bar an objecting party from establishing substantial compliance with our Rules. We hold only that the Petitioner's service on the Employer 7 working days late (11 calendar days), in conjunction with the Petitioner's obvious misreading of our Rules as providing 5 days after the filing of objections to serve the opposing parties, does not constitute substantial compliance with our Rules. 4 209 NLRB at 1059. 7 The Union further argues that, inasmuch as it filed the objections on Friday, April 6, and as April 12 and 13 were holidays in Puerto Rico, "The mandatory five (5) days that Section 102.69 of Rules and Regulations [sic] extended to April 17, 1979." It thus appears that the Union refers to Sec. 102.69(a), which sets forth the 5-day period for filing objections. However, the Regional Director found that the submission of the objections to the Regional Office was timely, but that the Union failed to comply with the service requirements specified in Sec. 102.69(a). 249 NLRB No. 70 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tions, or briefs in unfair labor practice proceedings; or petitions, motions, briefs, requests for review, or exceptions in representation cases.⁸ It is thus clear that the regional directors do not have any responsibility for serving other parties' documents in any of our proceedings, and we perceive no compelling reason to carve out an exception to our general practice by imposing on regional directors the obligation to serve copies of objections. The dissent further contends that the Regional Director erred in failing to investigate the objections because there was no showing that the Employer was prejudiced by the late service upon it.9 However, as the Board emphasized in Alfred Nickles Bakery, Inc., supra: Our decision in Certain-Teed does not stand for the proposition that the time requirements in our Rules and Regulations will be ignored on the singular ground that a party has not produced any evidence that it was prejudiced by another party's failure to comply with those requirements. Our Rules and Regulations have been developed and adopted for the purpose of providing for the orderly processing of representation cases within the framework of the National Labor Relations Act. In order to maintain the orderly processing of these cases, there must be adherence to the Board's Rules and Regulations. 10 We adhere to this position, and as we agree with the Regional Director's finding that the "Petitioner proffered nothing that would establish a valid and compelling reason why compliance with the timely service requirements of the Board's Rules could not have been effected," we further adopt the Regional Director's recommendation that the Em- 8 See, e.g., Secs. 102.21; 102.24; 102.46(j); 102.60; 102.65; 102.67; 102.69(c). Thus, our dissenting colleague's statement that Board service of election objections would be in harmony with the service of other documents is misleading. Of course the Board serves its own documents; but that cannot be equated with the Board's function concerning parties' motions, objections, briefs, exceptions, or requests for review. Although the Rules do not so provide, regional offices routinely serve copies of representation petitions. As in the case of the unfair labor practice charge, the petition initiates the representation process, and the identity and proper representatives of all interested parties may not be known to the petitioner. No such considerations apply with respect to objections, exceptions, briefs, etc. 9 The dissent relies upon Certain-Teed Products Corporation, 173 NLRB 229 (1968), for this proposition. However, we note that in Certain-Teed, which was a decertification proceeding, the employer filed a motion to dismiss the objections on grounds that, although the employer was timely served with a copy of the objections, the individual petitioner was not. The Board found no merit to this argument because the employer had been served with the objections pertaining to its conduct and did not claim that any prejudice resulted from the delay in serving the petitioner. In this connection, it should be noted that the petitioner was served with the objections prior to the motion to dismiss and that the employer had shown him those portions of the objections relating to him one day after service was made upon it. ployer's motion to dismiss the objections be granted. Accordingly, the motion to dismiss is hereby granted and we shall certify the results of the election. CERTIFICATION OF RESULTS OF ELECTION It is hereby certified that a majority of the valid ballots have not been cast for United Steelworkers of America, AFL-CIO, and that said labor organization is not the exclusive representative of all the employees, in the unit herein involved, within the meaning of Section 9(a) of the National Labor Relations Act, as amended. MEMBER TRUESDALE, dissenting: The facts of this case are uncontested. The election was conducted on March 30, 1979. On April 6, 1979, the Petitioner filed timely objections to conduct affecting the election results. On April 11, the Employer filed a motion to dismiss the objections for failure to comply with Section 102.69 of the Board's Rules which requires, in pertinent part, that "copies of objections shall immediately be served on the other parties by the party filing them." On April 17, in response to the Employer's motion to dismiss, the Petitioner served a copy of its objections on the Employer's counsel. Based on the rationale and holding of Alfred Nickles Bakery, Inc., 209 NLRB 1058 (1974), the Regional Director concluded, and my colleagues agree, that the Petitioner's objections fall short of the requirements of Section 102.69 and, for that reason alone, should be overruled. For my part, I believe the Board should resolve the problems that repeatedly crop up in connection with the "immediate" service requirement of Section 102.69 by adopting the policy we now follow with respect to the service of unfair labor practice charges. Thus, although ultimate responsibility for the service of an unfair labor practice charge rests with the charging party, Section 102.14 provides that the regional office "will, as a matter of course " serve a copy of the charge on the charged party. 11 As I will explain subsequently, by adopting a similar policy with respect to the service of objections we would help ensure the fairness of our elections which, after all, is our primary objective, with out imposing any great burden on the Board's regional offices. Pending a change in policy, however, I think this case should be controlled by the rationale of cases like Certain-Teed Corporation, 173 NLRB 229, in which the Board concluded that 10 209 NLRB at 1059. 11 While serving a copy of the charge is a matter of courtesy, Sec. 102.14 states that the regional director shall not be deemed to assume responsibility for such service. AUTO CHEVROLET, INC. timely objections should not be routinely rejected without considering their merits, merely because of delay in service "unless some prejudice be shown." Accordingly, in the absence of any such showing of prejudice to this Employer, I must dissent from my colleagues' refusal to remand to the Regional Director for consideration of the objections on the merits. In terms of dealing with the problems occasioned by the Board's efforts to enforce the service requirements of Section 102.69, and as further evidence of the need to alter our policy, it is instructive to examine the various approaches the Board has taken to that section in the past. In fact, the Board's requirement of "immediate" service under Section 102.69 has had a checkered history. In General Time Corporation, 112 NLRB 86 (1955), the Board, emphasizing the need for "certainty in procedural matters" and "strict adherence" to its Rules and Regulations, held that depositing copies in the mail 2 days after the objections were filed "was not service made 'immediately' under the Rules and Regulations.' Thereafter, in N.L.R.B. V. Brown Lumber Co., 336 F.2d 641 (1964), the Court of Appeals for the Sixth Circuit denied enforcement of the Board's bargaining order where, in the underlying representation case, the Board literally interpreted its Rules and Regulations and refused to consider the employer's election objections because a copy had not been served on the union. 13 The court pointed out that the Board ignored the following considerations: (1) the lack of prejudice to the union by not having been served with a copy of the employer's objections; (2) the injury which might be done to employee rights by a "slavish adherence" to a procedural rule; and (3) the concurrent effect of Section 102.121; "The rules and regulations shall be liberally construed to effectuate the purposes and provisions of the Act." In Certain-Teed Corporation, supra, the Board responded to the court's criticism by abandoning the strict formalistic approach of General Time. In Certain-Teed, which involved a decertification election, the union filed timely objections, most of which were based on alleged employer misconduct. 14 The employer was served with a copy of the objections on the same day they were filed, but the union did not serve the RD petitioner until 17 12 Although the Board has never expressly defined "immediately," General Time, supra, suggests that "immediately" is synonymous with "simultaneously." 13 In rebuking the Board for what it construed to be a "slavish adherence" to the Board's Rules and Regulations, the court expressed doubt "that it was ever intended that the Board's Rules and Regulations should operate as the law of the Medes and the Persians which 'altereth not." 14 One instance of alleged misconduct was attributed to the RD petitioner. days after the objections were filed. In response to the employer's request to dismiss the objections based on the delay in serving the RD petitioner, the Regional Director found that the delay did not result in any prejudice to the parties. In affirming the Regional Director, the Board, noting with approval the Sixth Circuit's decision in Brown Lumber Co., supra, concluded that timely objections should not be routinely rejected without considering their merits, simply because of a delay by the objecting party in serving other parties "unless some prejudice be shown." (Emphasis supplied.) However, in Peoples Natural Gas, Division of Northern Natural Gas Company, 191 NLRB 272 (1971), the union failed to serve the employer with a copy of the objections and the employer had no knowledge of their content for 36 days. When the Regional Director dismissed the union's objections on procedural grounds, the union requested an extension of time to file exceptions, but again did not comply with the Board's Rules and Regulations when it failed to serve the employer with a copy of its request for the extension. The Board, noting the union's "utter and repeated disregard of the Rules and Regulations" granted the employer's motion and dismissed the union's objections. 15 In Alfred Nickles Bakery, Inc., supra, the union filed timely objections but did not serve the employer until 27 days after the objections were filed with the Regional Office. Relying on Peoples Natural Gas, supra, the employer filed a motion to dismiss based on the union's failure to comply with Section 120.69's "immediate" service requirement. The Regional Director distinguished Peoples, noting that the delay in serving the objections was 27 days compared with 36 in Peoples and that in Peoples the Board found that there had been "utter and repeated disregard of the Board's Rules and Regulations In addition, the Regional Director, citing Certain-Teed, noted the absence of any evidence that the employer was prejudiced by the delay in service. In reversing the Regional Director, the Board observed: Certain-Teed does not stand for the proposition that the time requirements in our Rules and Regulations will be ignored on the singular ground that a party has not produced any evidence that it was prejudiced by another party's failure to comply with those requirements. [Rather,] in 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 15 Peoples Natural Gas, Division of Northern Natural Gas Company. supra. Cf. Wilson-Sinclair Co., 191 NLRB 341 (1971). DECISIONS OF NATIONAL LABOR RELATIONS BOARD attempt to substantially comply with the requirements of the Rules, or, alternatively, a valid and compelling reason why compliance was not possible within the time required by the Rules. 16 It is apparent that since Certain-Teed was decided in 1968, the Board has attempted to strike a balance between, on the one hand, avoidance of a "slavish" and literal interpretation of a procedural rule, and, on the other hand, the unquestioned need for fairness and regularity in Board proceedings, including the right to due process and notice to the parties. Although, as indicated previously, I believe that the Certain-Teed rationale is preferable to that of Alfred Nickles Bakery, and should control the instant case, 17 after due consideration of the competing (and perhaps conflicting) interests which the Board has sought to accommodate, I have come to the conclusion that neither approach is or can be entirely satisfactory. In sum the Board's current policy, at best, is difficult to administer and, at worst, fails to provide guidance to the parties, to our regional directors who must make the initial decisions in these matters, and, indeed, it would seem to the Board itself. 18 And, if experience thus far is any harbinger of things to come, I fear the Board will be inevitably drawn to return to the inflexible approach of General Time, supra. As I have pointed out herein, the solution to this problem is clear and can be accomplished, not through further litigation on this essentially sterile point, but through a simple change in the Board's Rules and Regulations. Thus, the problems of "immediate" service under Section 102.69(a) could be resolved entirely if the Board adopts the policy it follows with respect to service of unfair labor practice charges. And, if our experience with service of unfair labor practice charges is any guide, not only would service of the objections by the regional of- 16 Id. at 1059. 17 Thus, it is undisputed that in the instant case the objections were timely filed on April 6; the Employer was aware that objections were pending on April 11 when it filed its motion to reject; and the Employer's counsel was served with a copy of the objections on April 17. There is no evidence-and indeed no contention-that the Employer was prejudiced by the Petitioner's delay of 11 days in furnishing it with a copy of the objections. Nor is there evidence that the Petitioner has demonstrated either an "utter" or "repeated disregard of the Rules and Regulations." Accordingly, I would remand to the Regional Director to consider the objections on their merits. 18 The lack of guidance is illustrated by the The Nestle Company, 240 NLRB No. 182 (1977), where the Board held that the Regional Director applied Alfred Nickles too rigidly because (1) the union's failure to timely serve copies of its objections resulted from "the unfamiliarity of its agent, a layperson, with the Board's procedures," (2) the union apparently "attempted to comply by seeking information from the Regional Office as to the proper procedure for filing objections," and (3) the union "sought to rectify its error by serving the Petitioner the next day and on the Employer within two days." The union's need for assistance from the Regional Office lends further support for service of the objections by our regional offices. fices be in the best interest of the parties and of the public, it would save the Board the considerable expenditures in time and effort caused by litigating the "immediate" service requirements in cases like this one. Moreover, all this would be accomplished without unduly burdening the regional offices. In this last connection, it is worth pointing out that in fiscal year 1978, the Board received nearly 40,000 unfair labor practice charges, all of which, I presume, were served on the charged parties by the Board's 33 regional offices. There is no indication that service by the regions, a practice of long standing, has created any problems. Since objections were filed in ony 856 cases during FY 1978¹⁹ (an average of about 25 per regional office), service of objections by the regional offices, as a matter of courtesy, rather than as a right, would not impose an undue burden on the regional office staffs. 20 In continuing to adhere to a confusing (and vacillating) policy which has created more problems than it has solved, the majority rejects my proposal, not on its merits, but rather, because regional directors purportedly have responsibility for serving Board documents (charges, petitions, etc.), but not for serving the parties' documents (briefs, exceptions, requests for review, etc.). The majority misses the point. It is the service of objections, not other documents, that has created a problem of long standing-a problem that will continue to plague the Board and the parties until the Agency takes the simple and obvious step I have suggested. While service of charges and petitions may be undertaken as a "courtesy" and not as an obligation, such service has become so firmly imbedded in agency practice and procedure that the distinction has been lost in the mists of time. Further, unfair labor practice charges and representation petitions are "Board documents" only in the sense that they are usually (but not invariably) filed on forms provided by the Agency. Section 102.11 and Section 102.60 of the Board's Rules and Regu- 19 Although the 856 cases in which objections were filed in FY 1978 is the lowest since 1965, the number of objections cases has always been relatively low, with the objections ratio ranging from 12.0 percent in FY 1968 to 9.4 percent in FY 1973, with an overall ratio of 10.7 percent. Annual Statistics on Conduct of Elections-Fiscal Year 1978, Memorandum 79-34, Office of the General Counsel, Division of Operations Management, May 3, 1979. 20 Service of election objections by the regional offices would be in harmony with the service of other documents during the processing of representation cases. Thus, the regional offices routinely serve copies of the petition (nearly 13,000 during FY 1978), the notice of hearing, the election agreement, the Decision and Direction of Election, and the appropriate certification. In fact, our present practice, if objections received in a regional office indicate a lack of service on the other parties, is to send a postcard (Form NLRB 4126, adopted May 1964) reminding the objecting party of the necessity of complying with the immediate service requirements of Sec. 102.69. Since our regional offices are already involved in efforts to see that service is made, it is at best debatable whether routine service by the regions is any more burdensome than the present practice. AUTO CHEVROLET, INC. lations, which deal with the filing of charges and petitions, provide that such "shall be in writing and signed." Although the pertinent sections also provide that "a blank form, for filing a charge or petition "will be supplied by the regional director upon request," provision of these forms, as is their service, is a matter of courtesy. And, while most parties choose to use the forms provided by the Board as a matter of convenience, there is no requirement that they do so.2¹ For the reasons set forth above, I dissent and would remand to the Regional Director for consideration of the objections on the merits. 21 Although I have no desire to become embroiled in a pointless and sterile debate over what constitutes a "Board document," is the majority suggesting that Form 4551, Reguest To Proceed, and Form 601, Withdrawal Request, are Board documents merely because a party signs them whereas a letter from a party to the same effect is the party's document?