Glesby Wholesale, Inc.

54 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Glesby Wholesale, Inc. and Teamsters Local 85, af- attached Proof of Service." As further evidence of filiated with the International Brotherhood of its good faith herein, the Employer correctly as- Teamsters, Chauffeurs, Warehousemen and serts that, upon learning of its failure to comply Helpers of America, Petitioner. Case 20-RC- with the service requirements of Section 102.69, it 15224 immediately sought to rectify its error by serving, October 21, 1981 the next day, a copy of its objections on the Peti- tioner and a new proof of service with Region 20. DECISION AND ORDER REMANDING In agreement with the Employer, we conclude that the foregoing facts establish that the Employer BY MEMBERS FANNING, JENKINS, AND has made "an honest attempt to substantially comply" with the Board's rules on service of ob- On March 26, 1981, the Acting Regional Direc- jections. See, generally, Alfred Nickles Bakery, Inc., tor for Region 20 issued a Report on Objections 209 NLRB 1058, 1059 (1974). In this regard, we wherein he found that the Employer had failed to conclude that both the transmittal letter which ac- comply with the requirement in Section 102.69 of companied the objections as well as the speed with the Board's Rules and Regulations that it immedi- which the Employer sought to perfect service ately serve on the other party a copy of its objec- upon being notified of its deficiencies indicate that tions and that it make a statement of such service. its failure to comply with the service requirements The Acting Regional Director further found that of Section 102.69 was due to clerical inadvertence the Employer had offered no valid and compelling rather than a disregard of the Board's require- reason for its failure to comply with the require- ments. Cf. The Nestle Company,240 NLRB 1310, ment for immediate service and, accordingly, he 1311 (1979); see also High Standard, Inc., 252 recommended that the Employer's objections be NLRB 403, 405 (1980); and Alleghany Warehouse dismissed and that an appropriate certification be Company, Inc., and Star Warehouse Corporation, 256 issued. Thereafter, the Employer timely filed with NLRB No. 9 (1981). Accordingly, we will remand the Board exceptions to the Acting Regional Di- this matter to the Regional Director for investiga- rector's report wherein it contends, inter alia, that tion of the Employer's objections and any further the Acting Regional Director erred in failing to action deemed appropriate. find that the Employer made "an honest attempt to substantially comply" with the requirements of the ORDER Board's Rules and Regulations and, therefore, he It is hereby ordered that this proceeding be, and erred in failing to consider the merits of its objec- it hereby is, remanded to the Regional Director for tions. For the reasons stated below, we find merit Region 20 for investigation of the Employer's ob- in the Employer's exceptions. jections and any further action deemed appropriate. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- MEMBER JENKINS, dissenting: tional Labor Relations Board has delegated its au- I cannot agree with my colleagues' conclusion thority in this proceeding to a three-member panel. that the facts herein establish that the Employer In its brief in support of its exceptions, the Em- has made "an honest attempt to substantially ployer concedes that it failed to attach a "Proof of comply" with the requirements of Section 102.69 Service" form to the objections it filed, but it as- of the Board's Rules and Regulations. To the con- serts that such failure was due to "clerical inadver- trary, the Employer admittedly was aware of the tence." In this regard, the Employer contends that, requirements of Section 102.69, yet was not suffi- at the time its objections were prepared and signed, ciently concerned with the same to prevent such a proof of service form was also prepared, signed, "clerical inadvertence" as occurred herein. In my and attached to said objections, and that, at the opinion, this lack of concern clearly demonstrates a time its objections were filed with Region 20, it disregard of our requirements rather than an maintained a good-faith belief that such proof of "honest attempt" to substantially comply there- service form continued to be attached to its objec- with. tions and that a copy of its objections was immedi- Since the Employer has established neither an ately served on the Petitioner in accordance with "honest attempt to substantially comply" with our California law. In support of the latter contention, requirements nor a "valid and compelling reason" the Employer refers to the transmittal letter ac- for its noncompliance, I would dismiss the objec- companying its objections which states, inter alia, tions and issue the appropriate certification. See, "A copy of these Objections has today been served e.g., Platt Brothers, 250 NLRB 325 (1980). This my on the Petitioner as is more fully set forth in the colleagues refuse to do; accordingly, I dissent. 259 NLRB No. 8