Dart Container Corp.

798 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Dart Container Corporation and Robin Theuer, an Individual Petitioner, and Wholesale Delivery Drivers, Salespersons, Industrial & Allied Workers Local 848 , International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, AFL-CIO,' Union. Case 21-RD-2231 June 8, 1989 RULING ON ADMINISTRATIVE ACTION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS JOHANSEN, CRACRAFT, HIGGINS, AND DEVANEY On March 4, 1987, the Regional Director dis- missed the instant RD petition on the grounds that the Petitioner had failed to timely submit a dated showing of interest. On May 20, 1987, the Board granted the requests for review filed by the Em- ployer and the Petitioner. Having duly considered the matter, the Board concludes that the petition should be reinstated. - The Union represents the Employer's 120 pro- duction and maintenance employees. On February 11, 1987,2 the Petitioner, employee Robin Theuer, filed a decertification petition. The Petitioner sub- mitted as the showing of interest a list of signatures on a petition stating that the undersigned employ- ees no longer wished to be represented by the Union. Neither the petition itself nor the individual signatures on the petition were dated. A Board agent advised the Petitioner on February 11 to submit a dated showing of interest within 48 hours-by noon February 13; the parties disagree whether the Petitioner was told that each signature must be separately dated or that the date must appear only at the top of the page. The Petitioner offered to provide a signed document attesting that the signatures were recently provided. The Board agent, however, refused such offer. On February 19 the Regional Director decided to dismiss the petition because it was not supported by a timely showing of interest. Thereafter, the Re- gional Office attempted to inform the Petitioner of this decision; the parties also disagree as to the Pe- titioner's efforts to return the Board's call. On Feb- ruary 27 the Employer and the Union signed a new collective-bargaining agreement and, that same day, the Petitioner provided the Regional Director with a showing of interest, dated in the customary way. The Region informed the Petitioner that the i On November 1, 1987, the Teamsters International Union was read- mitted to the AFL-CIO Accordingly, the caption has been amended to reflect that change 2 All dates are 1987 unless otherwise indicated new showing of interest was not timely because it was not submitted by February 13. The Petitioner refused the Region's request to withdraw the peti- tion and the petition was subsequently dismissed. The Regional Office dismissed the petition pur- suant to Section 11028.5 of the Board's Casehan- dling Manual, which provides in pertinent part: "Only those signatures which are dated may be used for the purpose of investigating interest. (One date for a page of signators to an `authorization' petition is satisfactory.) No independent proof of the date of signing should be solicited or accepted."3 On the other hand, the Employer and the Petitioner contend that the petition should be reinstated pur- suant to the Board's decision in Phillips Petroleum Co., 46 LRRM 1558 (1960). In that case, the Board reversed the Regional Director's dismissal of a de- certification petition supplemented by an undated showing of interest; the petitioner had attached to the petition an affidavit stating that the five docu- ments submitted were signed between July 1 and August 1, 1960. Having carefully considered the conflicting posi- tions of the Casehandling Manual and the limited case law regarding the extent to which the date of a showing of interest may be supplied by affidavit, we find that the better approach is that of Phillips Petroleum. We therefore hold that the requirement that the showing of interest be "dated" may be met by affidavit, either submitted as part of the show- ing of interest itself or timely filed thereafter, and section 11208.5 of the Casehandling Manual should be revised accordingly. Persuasive arguments support the use of affida- vits to establish the dates on which employees signed the showing of interest. Initially, we note that in most representation cases the date of filing of the petition and, frequently, the date of submis- sion of the showing of interest are more critical than the precise date of signing of the showing of interest.4 Even in the unfair labor practice context a The first portion of Sec 11208 5 of the Casehandling Manual is con- sistent with Sec 101 17 of the Board's Rules and Regulations, which re- quires that the showing of interest "must be dated", the Manual's second provision, "No independent proof of the date of signing should be solicit- ed or accepted," does not appear in the Rules 4 For example, if a petitioner does not submit a showing of interest upon filing the petition, such evidence must be supplied within 48 hours after filing the petition "but in no event later than the last day on which the petition might be timely filed " See Casehandling Manual, Sec 11024 1 In the context of contract bar, to be timely with respect to an existing contract, a petition must be filed during the "open period"- more than 60 days, but less than 90 days before the expiration date of the preexisting contract, Crompton Co, 260 NLRB 417 (1982) Therefore, the date of the filing of the petition is always relevant when contract bar is alleged, and the date of the submission of the showing of interest be- comes especially critical to the contract bar issue when the open period is about to expire In the context of union intervention in representation cases, the intervenor should supply a showing of interest at the time or Continued 294 NLRB No. 63 DART CONTAINER CORP. in which the date of signing assumes much greater importance-for example, to establish the majority status of a union as of the date of an alleged demand for recognition-the Board has, on occa- sion, adopted a liberal interpretation of the require- ment that the showing of interest be "dated." For example, the Board has not invalidated authoriza- tion cards when an employee testified that she dated a card incorrectly and was confused as to the exact date she signed the card, El Rancho Market, 235 NLRB 468, 474-475 (1978), enfd. mem. 603 F.2d 223 (9th Cir. 1979); or when a union repre- sentative inserted the dates on the signed cards either at a union meeting or upon receipt of the signed cards from an employee solicitor, Maxwell's Plum, 198 NLRB 14, 21-24 (1972), enfd. 481 F.2d 75 (2d Cir. 1973). Moreover, in those circumstances when it is im- portant in a representation case to determine the precise date of signing of the showing of interest- for example, in resolving the propriety of interven- tion-an affidavit could be even more reliable than a dated signature. In this regard, we note that the Casehandling Manual only requires one date per page of signators; however, such page could be carelessly dated by a collector of signatures or as- signed a single date when , in fact, the signatures were gathered over a period of time. An affidavit, on the other hand, would call particular attention to the specific issue of exactly when the signatures were collected-a single day or over a period of time.5 For the reasons set forth, we find that the better guideline with respect to establishing the date of a showing of interest is that set forth in Phillips Petro- leum, above, and not the Casehandling Manual. Accordingly, we find that the Regional Director within 48 hours of the assertion of interest See Casehandling Manual, Sec 11024 2 If evidence of an intervenor 's showing is untimely, the timing of its submission with respect to the approval of a consent election agreement or the termination of a hearing (whichever is applicable) de- termines the extent of an intervenor's participation in the proceedings See Casehandling Manual, Secs 11026 2a and b The date of signing be- comes critical to intervention only in the more uncommon situation when the union had no preconsent or preheating notice , as when its interest was unknown Absent such notice , the union's showing of interest is treated as timely only if the interest does not postdate the close of the hearing or, when applicable, the approval of a consent election agree- ment See Casehandling Manual, Sec 11026 2c, Mayfair industries, 126 NLRB 223, 224 fn 1 (1960), R W Harmon & Sons, 250 NLRB 172 fn I (1980) 5 In fact, our informal inquiry of some Regional Directors indicated that some do permit at least RD petitioners to verify the showing of in- terest dates by affidavit despite the Casehandling Manual's prohibition in Sec 11028 5 of independent proof of the date of signing This fact indi- cates that such supporting affidavits are not difficult or costly to adminis- ter and are deemed by those Regional Directors to be reasonably reliable 799 should have accepted the Petitioner's offer of Feb- ruary 11 to provide a statement, which we shall re- quire to be in affidavit form, verifying the dates the employees signed the petition. We shall therefore order that the decertification petition be reinstated and the Petitioner be given an opportunity to pro- vide such affidavit.6 ORDER It is ordered that the petition be reinstated and that the Regional Director take further appropriate action. CHAIRMAN STEPHENS, concurring. I concur with the ruling and Order in this case, but not without some misgiving. As our decision persuasively explains, the Board's actual experience is occasionally to permit itself some flexibility in determining the date on which an employee signed an authorization card.' Likewise, it suffices under the Casehandling Manual for a representation peti- tion to bear only one date, at the top of a signatory page, allowing at least for the possibility that signa- tures on a particular page may be gathered over a period of days, weeks, or even months, rather than on the indicated date. Thus I think we are still in the ball park to allow the Petitioner here to estab- lish by affidavit the timeframe within which the signatures on the decertification petition were ob- tained. I would not, however, want to see our deci- sion today transform what is a rare instance of sub- mitting an undated showing of interest into the pre- vailing practice before the Board. Should future ex- perience show that the Board is expending too many resources investigating questions over the currency of showings of interest-questions which might more easily be avoided by tighter insistence upon documentation whose dating speaks for itself-I would hope that the Board would revisit this area of its practice and procedures. 6 In the event that the Petitioner establishes that the first petition was supported by a timely showing of interest and was therefore valid , then it is not necessary to determine at this time whether the Employer knew when it signed the collective-bargaining agreement on February 27 that on that same day a second showing of interest dated in the customary way was also submitted , or whether the RD petition should have been barred because the Employer lacked such knowledge See Deluxe Metal Furniture, 121 NLRB 995 , 999 (1958) ' Although not cited to us by any of the parties , in A Werman & Sons, Inc, 114 NLRB 629 (1955 ), the Board dismissed an RC petition because it was accompanied by authorization cards which were undated Howev- er, there is no indication in the Board's decision that the petitioning union was prepared to submit independent evidence showing the currency of the showing of interest Thus, if not explicitly , at least by implication, the summary of the Board's order in Phillips Petroleum Co, unofficially re- ported in 46 LRRM 1558 ( 1960), seems to modify rather than conflict with the holding of Werman