Coach and Equipment Sales Corp.

DECISIONS OF NATIONAL LABOR RELATIONS BOARD Coach and Equipment Sales Corporation and Sheet Metal Workers' International Association, Local Union No. 46, Petitioner. Case 3-RC-7215 November 17, 1978 DECISION AND CERTIFICATION OF RESULTS OF ELECTION BY CHAIRMAN FANNING AND) MEMBFRS JENKINS ANI) PFNE.I.( Pursuant to a Stipulation for Certification Upon Consent Election, the Regional Director for Region 3 conducted an election by secret ballot in the above- captioned proceeding among the employees in the appropriate unit on May 26, 1973. At the conclusion of the balloting, the parties were furnished a tally of ballots, which showed that of the approximately 76 eligible voters all 76 cast ballots, and that 35 were cast for and 38 against the Petitioner. In addition, three ballots were challenged, an insufficient number to affect the results of the election. Subsequently, by letter dated June 23, 1978, the Petitioner's attorney mailed to the Regional Director several objections to conduct allegedly affecting the results of the election. In accordance with Section 102.69(c) of the Board's Rules and Regulations, the Regional Director then conducted a full investigation of the Petitioner's objections. On August 1, 1978, the Regional Director issued his Report on Objections and simultaneously served a copy thereof on all par- ties to this proceeding. In his report, the Regional Director recommended that the Board overrule the Petitioner's objections in their entirety and that it certify the results of the election. By letter to the Re- gional I)irector dated August 8. 1978, the Petitioner's attorney excepted to certain portions of the Regional Director's report and urged that the objections be sustained and that a second election be ordered. On August 23. 1978, the attorney for the Elmployer submitted to the Board a motion to dismiss the Peti- tionel's objections. emphasizing. inter ctlia, that the objections were never served on either the Emploher or its attorney. In the alternative, the I:lnploser urges the Board in its brief to adopt the Regional L)irector's recommendation that the objections he overruled on the merits and that the results of the election be certified. In accordance with Sections 102.69(e) and 102.113(b) of the Board's Rules and Regulations, Series 8, as amended, the attorney for the Employer also filed with the Board a Aw;itten statement of service concerning both its motion to dismiss and its brief in opposition to the Petitioner's exception. In that document. the I mplo er's attor- ney certified that on August 23, 1978, copies of the Employer's motion and brief were sent by certified mail both to the Petitioner's attorney and to its busi- ness agent. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. Based upon the entire record in this case, the Board makes the following findings: I. The Employer is engaged in commerce within the meaning of the Act, and it will effectuate the purposes of the Act to assert jurisdiction herein. 2. The Petitioner is a labor organization claiming to represent certain employees of the Employer. 3. A question affecting commerce exists concern- ing the representation of employees of the Employer within the meaning of Section 9(c)(1) and Section 2(6) and (7) of the Act. 4. The parties stipulated, and we find, that the fol- lowing employees constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act: All production, maintenance, stockroom, and receiving employees employed by the Employer at its Penn Yan, New York, location; excluding all office clerical employees, all professional em- ployees, all guards, and all supervisors as de- fined in the Act. 5. In its brief in support of its motion to dismiss the Petitioner's objections, the Employer emphasizes that the letter in which the Petitioner articulated its objections to conduct affecting the results of the elec- tion, which was attached to the Regional Director's report as Exhibit 1,. contains no indication whatso- ever that a copy of the objections was sent either to the ELmploy!er or to its attorney. In support of its mo- tion, the Employer's attorney also attached an affida- vit averring, inter a/lita. that he did not acquire knowl- edge of the contents of the Union's objections until on or after August 2. 1978, the date on which he received knowledge of the Regional Director's Re- port on Objections, and, further, that he has not vet been served with a cops of the Petitioner's ohJec- ticins. In addition. the affidavit asserts that the Erm- ploscr has assured its attorneN that the Uinion has not served a copN of its obhections on any agent of the I:mploseri. and that no agent of the Employer acquired knowledge of the contents of the Union's objections until the date on which the Employer re- ceci' ed a cop) of the Regional )irector's report. I he record before the Board in the instant case contains neither a statement ol ser, ice nor ans other evidence w'hich migjht indicate or :uggest that the Pe- 340 COACH AND EQUIPMENT SALES CORPORATION titioner served a copy of its objections on the Em- ployer, its agent, or its attorney. In contrast, the letter by which the Petitioner submitted to the Board its exceptions to the Regional Director's report indicates clearly that a carbon copy thereof was mailed to the Employer's attorney. Furthermore, the record also contains a memorandum signed by the Petitioner's attorney averring that a copy of the Petitioner's ex- ceptions was mailed both to the Employer's attorney and to the Regional Director, as well as to the Board. on August 8, 1978. The complete absence of such a statement with respect to the Petitioner's objections is striking. Further, the Petitioner has not supplied the Board with any explanation in response to the Employer's motion to dismiss the Petitioner's objec- tions for lack of service thereof. Therefore, we have concluded that without expla- nation the Petitioner failed to serve its objections upon the Employer, in violation of the express re- quirements of Sections 102.69(a), 102.111, and 102.112 of the Board's Rules and Regulations. As a direct result of the Petitioner's actions, the Employer did not receive formal notice of the filing of contents of the Petitioner's objections until the Regional Di- rector mailed a copy of his Report on Objections to the Employer on August 1. 1978, 39 days after the Petitioner submitted its objections to the Regional Director. In light of the Petitioner's total failure to comply with our rules regarding the service of objections. we shall grant the Employer's motion to dismiss without reaching the merits of the Petitioner's objections. In- asmuch as the Petitioner failed to secure a majority of the ballots cast in the election herein, 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 Sheet Metal Workers' International Association, Local Union No. 46, and that said labor organization is not the exclusive rep- resentative of all the employees, in the unit herein involved, within the meaning of Section 9(c) of the Act. 341