NLRB Cases Archive 1960 - 1995, LABOR-RELATIONS 1993-94 CCH-NLRB ¶15,528, RUAN TRANSPORT CORP. and CHAUFFEURS, TEAMSTERS AND HELPERS LOCAL UNION NO. 215 aw INTERNATIONAL BROTHERHOOD OF TEAMSTERS, AFL-CIO., (Nov. 15, 1994), National Labor Relations Board, (Nov 15, 1994)

RUAN TRANSPORT CORP. and CHAUFFEURS, TEAMSTERS AND HELPERS LOCAL UNION NO. 215 aw INTERNATIONAL BROTHERHOOD OF TEAMSTERS, AFL-CIO.

315 NLRB No. 77.Case No. 25-RC-9360. November 15, 1994

Before Stephens, Devaney and Cohen.

Elections--Procedures--Notice Posting--Definition of “Working Days.”--Despite an employer’s contention that, for purposes of the Board’s posting requirements for notices of election, Friday, Saturday and Sunday satisfied the Board’s three-day requirement because the company operated seven days a week, the Board set aside the election in response to a union’s objection. Under the Board’s rule (Section 103.20), Saturdays, Sundays, and holidays are specifically excluded as “working days.” Section 9(c).

Back reference: ¶2775.78.

From Text of Board’s Decision

The National Labor Relations Board, by a three-member panel, has considered an objection to an election held on May 21, 1994, and the Regional Director’s report recommending disposition of it. [1] The election was conducted pursuant to a stipulated election agreement. The tally of ballots shows seven for and nine against the Petitioner with no challenged ballots.

The Board has reviewed the record in light of the exceptions and briefs, has adopted the Regional Director’s findings and recommendations, and finds that the election must be set aside and a new election held.

The Employer runs a trucking operation from its Boonville, Indiana facility. The bargaining unit consists of approximately 19 truckdrivers at the Boonville facility. As noted above, the election took place on Monday, May 2, 1994. The Employer received the Board’s official election notices on the morning of Thursday, April 28, and posted them at that time.

In its Objection 1, the Petitioner contended that the election must be set aside because the election notices were posted less than 3 full working days prior to the date of the election as required under Section 103.20 of the Board’s Rules and Regulations. [2] Since the Employer acknowledged that it did not post the election notices until the morning of Thursday, April 28, the Regional Director found that the Employer did not satisfy the 3-day posting requirement of Section 103.20. [3] The Regional Director further found that the Employer did not notify the Regional Office of nonreceipt of the notices as the Rule requires.

The Employer excepts on the ground that it was denied due process because the Regional Director failed to permit it to present evidence during the investigation as to whether the election notices were timely posted and failed to hold a hearing on this issue. The Employer contends that if it had been allowed to present evidence, it would have shown that because it operates 7 days a week, Saturdays and Sundays are “working days” and thus it satisfied the requirements of Section 103.20 because the notices were posted for 3 full working days prior to the Monday, May 2 election. [4] The Employer aruges, in effect, that the issue here, whether the Board should consider Saturdays and Sundays to be “working days” within the meaning of Section 103.20(b) when an employer operates 7 days a week, is the type of issue that the Board should consider on a case-by-case basis. Thus, the Employer contends that the Regional Director erred in not considering this issue before applying Section 103.20. We find these arguments without merit.

The Board adopted Section 103.20 in 1987 to “facilitate the election process and eliminate litigation over the issue of the appropriate time period for posting an election notice.” 52 Fed.Reg. 25213 (1987). Although it was suggested that the Board apply different posting periods for industries in which employees did not work a normal 5-day workweek, the Board rejected the proposal because it was “reluctant to complicate the rule by establishing different posting periods for different industries.” Id. at 25214. In a similar vein, the Board also rejected the suggestion that the time period for posting should be described in terms of hours, “because requiring consecutive hours does not allow for Saturdays, Sundays, and holidays” which the Board specifically excluded from the definition of “working day.” Ibid. Thus, by proposing to apply an uncomplicated rule of general application according to its literal terms, the Board sought to eliminate litigation over the issue of whether election notices were timely posted. Although the Board did state that certain issues would still have to be litigated, it contemplated as litigable such issues ws whether timely posted notices had been tampered with, not whether the notices themselves had been timely posted. Ibid. Thus, we cannot agree with the Employer that the Board left open for later consideration, and litigation, whether Saturdays, Sundays, and holidays should be considered “working days” within the meaning of Section 103.20(b). This is precisely the type of litigation that the Board sought to foreclose by enacting Section 103.20.

Finally, although it is unfortunate that the Employer did not receive the election notices until April 28, [5] it did not notify the Region at least 5 working days prior to the election that it had not received the election notices. [6] For all these reasons, we find the Employer’s exceptions to be without merit. Accordingly, as noted above, we shall set aside the first election and direct that a second election be held.