High Standard, Inc.

HIGH STANDARD. INC. High Standard, Inc. and International Union, United Automobile, Aerospace, Agricultural Implement Workers of America, Petitioner. Case I-RC- 16421 September 26, 1980 DECISION AND CERTIFICATION OF RESULTS OF ELECTION BY CHAIRMAN FANNING AND) MEMBERS JENKINS ANI) PENEI IO Pursuant to authority granted it by the National Labor Relations Board under Section 3(b) of the National Labor Relations Act, as amended, a three- member panel has considered determinative chal- lenges in an election held August 28, 1979,1 and the Acting Regional Director's report issued on November 2, 1979, recommending disposition of same. The Board has reviewed the record in light of the exceptions and brief, and hereby adopts the Regional Director's findings2 and recommenda- tions. The Acting Regional Director recommended that the Petitioner's objections be dismissed in their entirety on grounds that they were not served on the Employer in compliance with Section 102.69(a) of the Board's Rules and Regulations, Series 8, as amended, which requires, inter alia, that immediate service of copies of the objections be served on all other parties to the election, and that a statement of service "shall be made." He further recommend- ed that the Board issue a Certification of Results of the Election. Alternatively, should the Board not adopt this recommendation the Acting Regional Director recommended that the Petitioner's Objec- tion 4 should be overruled and that a hearing should be directed on its Objection 1.3 For the rea- sons set forth below we adopt his recommendations that the objections should be dismissed for failure of proper service. On August 30, 1979, the Petitioner mailed its ob- jections to the Regional Office where they were received on September 4, 1979. No statement of service or notation that a copy had been sent to the Employer was included with the objections. Also, on September 4, the Petitioner filed an unfair labor practice charge in Case -CA-16540, alleging vio- l The election was conducted pursuant to a Stipulation for Certifica- tion Upon Consent Election. The tally was 45 for and 47 against, the Pe- titioner: there were 4 challenged ballots, a sufficient number to affect the results. 2 In the absence of exceptions we adopt, proforma, the Acting Region- al Director's recommendation that the challenges to the ballots of Nicho- las Frosolone, Ralph Grillo. and Vincent Sinopoli be sustained and that no disposition be made of the challenge to the ballot cast by Karen Hart- ley since it is no longer determinative. I The Petitioner withdrew Objections 2. 3, 5, 6. 7, 8, and 9 with the approval of the Acting Regional Director. 252 NLRB No. 64 lations of Section 8(a)(l), (3), and (5) of the Act, by conduct identical to that alleged in its objections. On September 4, a copy of the charge in Case 1- CA-16540 was mailed to the Employer by the Re- gional Office. On September II, the Employer no- tified the Regional Office that it had not received a copy of the Petitioner's objections. The Board agent then informed the Employer's attorney that the alleged objectionable conduct was identical to the allegations in the unfair labor practice case, and on the same day advised the Petitioner's repre- sentative that the Employer claimed it had not been served with the objections and that lack of service could constitute grounds for dismissal of the objections. By letter dated September 11, the Employer filed a motion to dismiss the objections on the ground that it had not been served a copy of the Petitioner's objections. The Petitioner was served a copy of this motion by the Employer. By affidavit dated September 18, the Petitioner's business agent, Robert Madore, stated that on August 30, 1979, immediately after sending the Re- gional Office a certified mail copy of the objec- tions, he mailed copies of the object ons to the Em- ployer's president by depositing those copies in the mailbox located outside a post office building. Also on September 18, in a conversation with two repre- sentatives of the Petitioner, a Board agent reiterat- ed the Board's requirements of service under Sec- tion 102.69. By letter dated October 3, 1979, the Employer renewed its motion for dismissal on grounds that it still had not been served a copy of the Petitioner's objections. On October 25, 1979, the Regional Office received the Employer's memorandum of law in support of the motion to dismiss the objections, dated October 22, in which it stated that, as of the latter date, it still had not been served. A statement of service on the Peti- tioner appears on that document. At no time after being advised that the Employ- er had yet to be served a copy of the objections, did the Petitioner attempt to do so. Nor did the Pe- titioner offer any explanation for its failure to make another effort at such service or why it did not re- spond to the Employer's motions or mail the objec- tions by certified or registered mail, as the Acting Regional Director found it had done with other correspondence that it had sent the Employer. Based on the above facts, the Acting Regional Director concluded that the Petitioner failed to show that it had made "an honest attempt to sub- stantially comply with the requirements of the Rules, or, alternatively, to show a valid and com- pelling reason why compliance was not possible within the time required by the Rules." Alfred Nickles Bakery, Inc., 209 NLRB 1058 (1974). In 403 DECISIONS OF NATIONAL L.ABOR RELATIONS BOARD reaching that conclusion, the Acting Regional Di- rector noted that the Petitioner's claim that it served its objections by ordinary mail was unsup- ported by any evidence other than Business Age, t Madore's affidavit, that the Petitioner could not claim unfamiliarity with the Board's procedures for filing objections as it had filed objections with the Regional Office on numerous past occasions, and that, despite having been informed of the Employ- er's claim that it had not received a copy of the ob- jections and of the requirement that service be made, the Petitioner made no further attempt to ef- fectuate service. Consequently, he recommended that the objections be dismissed. In excepting to the Acting Regional Director's above recommendation, the Petitioner contends that the Employer's claim of not receiving a copy of the objections by certified mail should not justi- fy dismissal of its objections, since its attempt to serve the objections by regular mail, as verified by Madore's affidavit, constituted "a good faith, dili- gent effort to comply with the [B]oard's rules and regulations regarding services [sic] of objec- tions."-especially as the Employer allegedly was not prejudiced because the Board agent advised the latter's attorney that the objections were identical to the unfair labor practice allegations made in Case 1-CA-16540. We disagree. In Auto Chevrolet, Inc.,4 we reaffirmed the prin- ciples enumerated in Alfred Nickles Bakery, supra, here relied upon by the Acting Regional Director, that in order to support a variance or deviation from the clear requirements of our rules the object- ing party must show "an honest attempt to substan- tially comply" with the rules on service of objec- tions. In determining in that case that no such at- tempt was made, we specifically concluded that it was irrelevant whether the party on whom service should have been timely made was prejudiced by the failure to comply with our service require- ments. Thus, that the Employer's counsel in this case was informed that the objections paralleled the charges in a related unfair labor practice case is of no consequence in determining whether the Pe- titioner's unsuccessful attempt to effectuate service on the Employer by regular mail constituted sub- stantial compliance with our rules for service.5 Section 102.112 of the Board's Rules and Regula- tions governs the manner in which service of ob- jections, among other papers, is to be made. That section provides that "[s]ervice of papers by a party on other parties shall be made by registered 4 249 NLRB 529 (1980). s For purposes of this proceeding, we have accepted Madore's aver- ments that he mailed a copy of the objections by regular mail. We have also accepted the Employer's claim that the objections were not received by it or counsel mail, or by certified mail, or in any other manner provided for the service of papers in a civil action by the law of the State in which the hearing is pending." It also provides that "service on all par- ties shall be made in the same manner as that uti- lized in filing the paper with the Board," and that "[w]hen service is made . . . by certified mail, the return post office receipt shall be proof of service." In addition, it provides that "[failure to comply with the requirements of service on other parties shall be a basis for either (a) a rejection of the doc- ument or (b) withholding or reconsidering any ruling on the subject matter raised by the docu- ment until after service has been made...." It is clear that the Petitioner's attempted service by regular mail did not comply with the provisions of Section 102.112 of our rules since such service would be acceptable only if provided for by Con- necticut procedure, the State in which the parties are situated, and our review of the statutes of that State reveal no provision for service in such a manner. It is therefore apparent that the Petition- er's use of regular mail to serve its objections amounts, at the very least, to a variance or devi- ation from the service requirements of Section 102.112 and therefore of Section 102.69(a). Thus, unless there are compelling reasons for the Peti- tioner's failure to comply with the service require- ments of our rules or special circumstances which would warrant our concluding that the Petitioner had made "an honest attempt" to achieve compli- ance with those requirements, the Petitioner's ob- jections must be rejected as improperly filed and served. No such reasons or circumstances appear to exist. The Petitioner has not proffered any explanation for its deviation from the requirements of our rules for service. It has offered no reason for its failure to use, as required, the same means of service-cer- tified mail-on the Employer that it used in filing its obejections with the Board (and, apparently, other documents it had sent to the Employer) even though the separate mailings, one to the Board and the other to the Employer, were done on the same visit to the post office. It also has failed to explain why no statement of service was included with the objections. Finally, the Petitioner does not claim ignorance of the service requirements at the time it resorted to regular mail to serve the objections on the Employer. 6 Consequently, the Petitioner not I The parenthetical note in its exceptions that the Petitioner was not represented by an attorney does not show that it was unaware of the service requirements. In any event, the Petitioner cannot now proclaim any such ignorance in light of its being advised on at least two occasions by Board agents of the service requirements, as well as its being put on notice thereof by the Employer's motions and supporting memorandum. 404 HIGH STANDARD, INC. only has failed to comply with the requirements of our rules for effecting service of its objections, but it also has failed to furnish any good, let alone compelling, reason for its not doing so. In these circumstances, we find virtually no support for the Petitioner's contention that its use of the regular mails to attempt service constituted a "good-faith, diligent effort to comply with the [B]oard's rules and regulations regarding services [sic] of objec- tions... "7 7 Chairman Fanning also concludes that, in spite of the Petitioner's failure to follow the service requirements of Secs 102 112 and 102 h9(a) or provide an explanation for not following those procedures, there might still have been a basis for finding that the Petitioner had made "an honest attempt to substantially comply" with Sec 102 69(a) of the Board's rules as interpreted in Auto Chevrolet, Inc., and Alfred N'ikkh, Bakery, Inc., had the Petitioner. once notified that its attempted method of service had been unsuccessful, taken immediate steps to effectuate proper service on the Employer. Thus, on September II and again on September 18 the Petitioner was advised by the Regional Office that the Employer claimed it had not been served with the objections and that lack of service could constitute grounds for dismissal of its objections. It also was advised of the service requirements. Yet, despite being so ad- vised and notwithstanding receipt as well of the Employer's two motions to dismiss the objections on this very ground, the Petitioner did nothing to effect service of its objections on the Employer between September I I and the issuance of the Acting Regional Director's report on November 2 In the Chairman's iew, by failing to make prompt and proper service on the Employer of its objections once apprised that its first and only Accordingly, as the record establishes that the Petitioner did not comply with the service require- ments of the Board's rules, did not offer any com- pelling reasons for its failure to do so, and did not show an honest attempt to substantially comply with those rules, we adopt the Acting Regional Di- rector's recommendation that the Petitioner's ob- jections be dismissed. We shall therefore 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 International Union, United Automobile, Aerospace, Agricultural Im- plement Workers of America 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. attempt-and one not in compliance with the prescribed methods for service-was unsuccessful, the Petitioner removed any possibilit) for finding merit to its argument that its use of regular mail to serse the oh- jections constituted a "good faith, diligent effort" and therefore an "honest attempt to substantially comply" with the Board's rules C Ilh Niest/ Company, 240) NI. RB 1310 (1979) 405