Drum Lithographers

22 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Drum Lithographers and Local One, Amalgamated Lithographers of America, Petitioner. Case 22- RC-9701 9 December 1987 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS JOHANSEN, BABSON, STEPHENS, AND CRACRAFT Pursuant to a Stipulated Election Agreement an election was conducted on Wednesday, 26 Novem- ber 1986. On 1 December 1986 the Petitioner mailed objections to the Regional Office, which were received in the Regional Office on Thursday, 4 December 1986, 8 days after the election and preparation of the tally of ballots. By letter dated 8 December 1986 the Regional Director for Region 22, relying on Sections 102.69(a)1 and 102.111(b)2 of the Board's revised Rules and Regulations, found that the objections were due in the Regional Office no later than Wednesday, 3 December 1986, and rejected Petitioner's objections as untimely filed. By letter dated 12 December 1986 the Petitioner appealed the Regional Director's ruling to the Board. In its appeal the Union contends that the Union's attorney learned the results of the election on the evening of 26 November, that the following day, Thanksgiving Day, was a Federal holiday, that the day after Thanksgiving was treated as a holiday by both the Union and its attorney's law office, that it was therefore "impossible for objec- tions to be research [sic], drafted and mailed on that date," and that its objections to the 26 Novem- ber election were mailed to the Regional Director on 1 December-2 days before the due date. The Union also argues that the election objec- tions were mailed on the first working day after the election, 1 December 1986, that unfortunately ' Sec 102 69(a) of the Board's Rules and Regulations states in perti- nent part [W]ithin 7 days after the tally of ballots has been prepared, any party may file with the Regional Director an original and five copies of objections to the conduct of the election or to conduct affecting the results of the election 2 Sec 102 111(b), which deals with the service and filing of papers, provides that In construing this section of the rules, 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 Provided, however, the following documents must be received on or before the close of business of the last day for filing (1) Charges filed pursuant to section 10(b) of the Act (2) Applications for awards and fees and expenses under the Equal Access to Justice Act (3) Objections to elections and revised tallies (4) Petitions to revoke subpoenas (5) Petitions filed pursuant to section 9(c) of the Act the postal service was unable to deliver the objec- tions to the Regional Office (approximately 15 miles from the union counsel's office) until 4 De- cember, and that "it is ironic that the practical effect of the Board's Rules is to make it impossible for a party seeking to file objections to utilize the United States mails." Accordingly, the Union re- quests that the Board's Rules and Regulations be amended "retroactively to provide that if the ob- jections are mailed in a timely fashion, they should be considered timely received notwithstanding delays by the U.S. Postal Service." For the reasons which follow, the Petitioner's appeal is denied and the Regional Director's rejec- tion of the objections as untimely filed is affirmed. Effective 29 September 1986 the Board revised its Rules and Regulations regarding the time peri- ods in which to file documents with the Board, in- cluding the filing of election objections. These revi- sions, along with an explanatory statement, were published in the Federal Register on 1 July 1986.3 As noted above, Section 102.111(b) of the Board's revised Rules and Regulations provides generally that any document postmarked on the day before (or earlier than) the due date will be timely regard- less of actual receipt. Five specific types of docu- ments, including "election objections," however, are expressly excluded from the postmark rule and "must be received on or before the close of business of the last day for filing" (emphasis added).4 It is well settled that as an administrative agency and quasi-judicial body, the Board has broad dis- cretion in making and applying its own procedural rules and regulations.5 Prior to the revisions de- scribed above, the Circuit Court of Appeals for the District of Columbia criticized the Board for re- jecting documents as untimely filed without "articulat[ing] its reasons for a strict rule that re- quires filings to be in hand on the due date and announc[ing] that it will apply this rule uniformly with specific stated exceptions . . . ."6 The Board's Rules were revised, in part, to address this particular criticism. The explanatory statement that accompanied publication of the revised Rules and Regulations in the Federal Register specifically de- scribed the Board's then-existing practice, as articu- lated in Rio de Oro Uranium Mines, 119 NLRB 153 (1957), of treating as timely filed election objec- tions received after the due date when the object- 3 51 Fed Reg 23744 (1986) 9 See Sec 102 111(b), supra 5 NLRB v JS Popper, Inc, 113 F 2d 602, 603-604 (3d Cir 1940) See Kenworth Trucks v NLRB, 580 F 2d 55, 62 (3d Cir 1978) ( opinion on rehearing), citing Vermont Yankee Nuclear Power Corp v NRDC, 435 U S 519, 525 (1978) 6 Washington Star Co, 732 F 2d 974, 977 (D C Cir 1984) 287 NLRB No. 15 DRUM LITHOGRAPHERS 23 ing party "took every precaution necessary to assure compliance with the Board's Rules." The explanatory statement also made clear that the "need for prompt resolution of representation issues" required the exclusion of "election objec- tions" (as well as election petition) from the "post- mark" rule which governs the timely filing of other documents with the Board . In addition , the explan- atory statement specifically advised that the effect of the new rule, which was not effective until nearly 3 months after publication, was "to overrule Rio de Oro Uranium by requiring actual receipt on the filing date." Accordingly, all parties were put on notice, with full explanation, that the new rule would be strictly applied and that election objec- tions now must actually be received in the Region- al Office on the due date. See Washington Star Co., supra at 977. The major thrust of the Petitioner's appeal is to urge the Board to amend its rule retroactively (and without explicitly saying so, return to Rio de Oro Uranium), so that objections postmarked prior to the due date would be considered timely without regard to when they are received. We decline to follow the Petitioner's suggestion. The Board's Rule is explicit: objections to election must be re- ceived-not just postmarked or otherwise transmit- ted-within 7 days. The rule change put the Peti- tioner on notice of a strict deadline. The Petition- er's case is particularly unpersuasive when it could readily have met this deadline by sending the ob- jections by express mail or telegram or by deliver- ing them in person to the Regional Office .7 Exclu- sion of election objections from the documents covered by the postmark rule was intentional in recognition of the need for promptness in resolving representation issues. In these circumstances there is no room for a liberal construction of the Board's Rules. Accordingly, the Petitioner's appeal is denied and the Regional Director's rejection of the Petitioner's election objections as untimely is af- firmed. MEMBER CRACRAFT, dissenting. I would consider the Petitioner's objections on the merits in this case. Thus, I dissent from my col- 7 Our dissenting colleague makes an additional observation that, when a holiday falls during the first 6 days of the period for filing objections, rather than on the seventh day, the effect of the newly promulgated Board's Rules is to reduce the number of workdays to file objections by one. She correctly notes that such a result is contrary to the intent of the Rules, as expressed in the introductory statements , to lengthen the time for filing in all cases where changes have been made . Nevertheless, we do not believe that such a relatively unusual circumstance overrides the desirability of simplicity, clarity, and uniformity in formulating procedur- al rules This is a particularly unpersuasive case for carving out an excep- tion to the Board 's Rules, when the Petitioner's failure to meet the filing deadline is not attributable to a lack of workdays to prepare its objec- tions leagues' decision to affirm the Regional Director's rejection of the Petitioner's objections based on timeliness. Though I share my colleagues' concern for promptness in resolving representation issues, I fear that the result in this case elevates form over substance in an area where we must be careful not to disregard the parties' arguments in favor of blind adherence to procedure. Effective 29 September 1986 the Board revised its Rules and Regulations regarding the time limits for filing objections in representation cases.' Prior to these revisions, an objecting party had 5 work- ing days within which to file its objections and, in construing the timeliness of objections that were actually received after the due date, the Board held that when the objecting party "took every precau- tion necessary to assure compliance with the Board's rules," the objections would be considered timely. Rio de Oro Uranium Mines, 119 NLRB 153 (1957). This holding has been uniformly and con- sistently interpreted to mean that if the objections were postmarked before the due date they were timely and thus would be considered on the merits. See, e.g., Nyack Hospital, 238 NLRB 257 fn. 3 (1978); Gruber's Supermarket, 201 NLRB 612 fn. 3 (1973). The revisions have changed the procedures re- garding the timeliness of objections in two ways. First, under revised Section 102.69(a), the objecting party now has 7 days from the preparation of the tally of ballots in which to file its objections. The sole exception to the 7-day rule is when the due date falls on a holiday. In that event, the objections are due on the next working day. Second, under revised Section 102.111 (b) actual receipt of the ob- jections on the due date is required , thus overruling Rio de Oro concerning objections. The result of these changes is to actually reduce the time period for filing when a holiday falls during the first 6 days of the filing period. This result is contrary to the Board's explication of the rule changes. In summarizing the rule changes,2 the Board stated in explanatory material accompanying the changes: "With the exception of certain filing peri- ods governed by statute,3 virtually all the periods for filing papers with the Board have been expand- ed to provide for additional time for filing ...."4 Further, the Board explained that, "In each in- stance where the rules have been changed, the time ' I did not participate in the Rules revisions. 2 The rule changes encompassed revisions regarding time periods in which parties must respond to Board action in areas other than objec- tions. a The establishment of the filing period for objections is a matter of administrative discretion and thus does not fall within the exception noted above as it is not statutorily mandated. 4 51 Fed.Reg. 23744 (1986). 24 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD periods have been increased, not decreased."5 Thus, it appears that the purpose and intent of the Rules revisions was not only to avoid confusion over the calculation of time for filing,s but also to allow more time for the various filings under the new rule. The fact that the changes result in a re- duced amount of time when a holiday falls during the first 6 days of the objections filing period was apparently overlooked. In the interest of fairness, this apparently inadvertent result must, in my opin- ion, be corrected. The lasting and significant effects of an election on all parties concerned and the con- comitant right of a party to make objections are simply too important for the Board to overlook in order to effect pedantic consistency.? Thus, I would amend revised Section 102.69(a) to provide that in no event would the time for filing objections be less than 5 working days after the tally of ballots has been prepared. The result would be to extend the 7-day period by 1 day when a holiday falls during the first 6 days of the objections filing period; the same result we already reach when the holiday falls on the seventh day. I see no defensible rationale for allowing an exten- sion of the filing period for objections when the holiday falls on the seventh day but not when it falls on the first 6 days. Although the Board may have the discretion to provide for such a distinc- tion on the basis that the objections are not deliver- able by mail on a holiday, I believe this borders on arbitrariness in light of the announced purpose of the rule: to provide additional time for filing. The facts of this case illustrate the point. On 26 November 1986, the Wednesday before Thanksgiv- ing, the election was held. The next day, Thanks- giving, was, of course, a holiday. On Monday, 1 December 1986, the first workday for the Petition- er since the election," the Petitioner prepared and 5 51 Fed Reg 23745 (1986) 6 The expansion of the time limits was due in part to the elimination of a provision in the previous rule which allowed for the addition of 3 days to the time limits when service was by mail The 3-day provision had re- sulted in some confusion concerning when the due date actually occurred and whether "filing" was accomplished on depositing the responses in the mail or on receipt by the Board See Peabody Coal Co. Y NLRB, 709 F 2d 567 (9th Cir 1983), and Kessler Institute for Rehabilitation Y NLRB, 669 F 2d 138 (3d Cir 1982) Thus, the Board stated, "Each period for responding to Board action under the rules, including filing of documents with the Board, is extended to that multiple of seven days which will provide a period longer than the sum of the presently specified time plus the three days for mail service " 51 Fed Reg 23744 ( 1986) (emphasis added) ' The Board's preference in all proceedings that come before it is and should be to decide disputes on the merits The Board' s own regulations provide that its rules "shall be liberally construed to effectuate the pur- poses and provisions of the Act " 29 C F R § 102 121 (1983) When, as in this case, the objecting party has acted diligently and in good faith, and there is no prejudice shown to any party to the proceeding, the objec- tions must be accepted and considered on the merits See NLRB Y Wash- ington Star Co, 732 F 2d 974 (D C Cir 1984) 8 The Friday after Thanksgiving was a holiday for both the Petitioner and its attorney Although I do not advocate lengthening the period for mailed its objections to the Regional Office. Three days later, 4 December 1986, the objections were received in the Regional Office. Under the old rule the objections would have been timely filed as they were received on the fifth workday after the prepa- ration of the tally of ballots.9 Under the revised rule, the objections were untimely as the 7-day period expired on 3 December 1986 and receipt was a day later. In addition to amending the Rules to provide an extension of the filing period when there is an in- tervening holiday, I would also amend the Rules to codify the Rio de Oro principle. Thus, I would con- sider as timely filed objections which are post- marked by the day before the due date. Once again, the facts of this case illustrate the need for such a rule change. Under the old rule, even if the objections had not been received on the fifth workday, they still would have been treated as timely by the Board under the Rio de Oro principle. The objections were postmarked 2 days before their due date. Thus, under the then-current application of Rio de Oro, the objections would have been timely filed. The objections herein were mailed from a location only 15 miles from the Regional Office but took 3 working days to be delivered. Unpredictability of the Postal Service must be considered in establishing hard and fast rules re- garding the timeliness of filings before the Board. The inevitable conclusion one must draw is that to guarantee a timely filing under the revised Rules, an objecting party must hand deliver its objections to the Regional Office. In light of the considerable distance between many of the locations of those who practice before the Board and the locations of our Regional Offices, this is an impractical and in- equitable requirement. This is particularly so when one considers how easily this requirement can be revised to meet the needs of the Board and the par- ties who practice before it. The postmark rule of Rio de Oro protects those parties who, acting in good faith, have their objections postmarked by the day before the due date. This rule clearly sets out a party's obligation without regard to any unpredict- ability of the mail. Likewise, the Rio de Oro rule protects the Agency from late-filed objections re- quiring acceptance only when postmarked no later than the day before due or received by the due date. filing for every individual holiday, nor do I in this case, this fact is rele- vant to demonstrate the good faith and due speed with which the Peti- tioner acted herein 9 This computation, of course, counts the day after Thanksgiving as a workday in spite of the fact that the Petitioner treats it as a holiday DRUM LITHOGRAPHERS 25 I, of course, do not dispute that the Board has the authority and discretion to make rule changes in this area . When, however, as here, the rule ap- pears to be at cross purposes with the Rules' own explanatory statements and the treatment of holi- days is inconsistent dependent on whether the holi- day falls on the seventh day rather than one of the preceding days, I cannot agree with the rule changes or the results herein. Further, I simply do not agree with the inflexibility of the majority's po- sition regarding the mailing of objections. I would reinstitute the Rio de Oro rule under which, in my view, there is little risk of anyone's rights being prejudiced. Accordingly, I dissent from the majority's deci- sion to treat these objections as untimely.