Evans Brothers Barber & Beauty Salons, 121 (1981)

Docket Number: 10-CA-14974

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Evans Brothers Barber & Beauty Salons, 121 (1981)

EVANS BROTHERS BARBER & BEAUTY SALONS 121

Evans Brothers Barber & Beauty Salons, Inc. and Barbers, Beauticians and Allied Industries International Association, AFL-CIO-CLC. Cases 10-CA-14974 and 10-RC-11885

May 22, 1981

DECISION, ORDER, AND DIRECTION OF SECOND ELECTION

On July 31, 1980, Administrative Law Judge Elbert D. Gadsden issued the attached Decision in this proceeding. Thereafter, the General Counsel and the Charging Party filed exceptions and supporting briefs, and Respondent filed cross-exceptions and a brief in support thereof and in opposition to the exceptions.' The Board has considered the record and the attached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge, as modified herein, and to adopt his recommended Order, as modified herein. 2

1. We agree with the Administrative Law Judge's conclusion that Respondent unlawfully created the impression of surveillance of its employees' protected concerted activities when its president, Evans, told employee Mitchell that he knew I Respondent additionally filed a motion to strike the Union's exceptions as untimely filed In this regard, Respondent contends that it did not receive the Union's exceptions until August 27. 1980, 2 days after they were due in Washington, D.C. Assuming that copies of the exceptions were mailed by the Union at the same time as the exceptions themselves,

Respondent argues that since its copy of the exceptions was postmarked on August 25, 1980, in Indianapolis, Indiana, the Union could not have harbored a reasonable expectation that its exceptions would arrive in Washington, D.C., by the August 25 filing date. Accordingly, Respondent contends that since the time of filing of the Union's exceptions exceeded the time allotted for such filing in Sec 102.46 of the Board's Rules and Regulations, those exceptions should be struck as untimely filed.

In reply to Respondent's motion, the Union's attorney asserts that his secretary deposited the exceptions in the United States mail on Friday,

August 22, 1980. An affidavit by the attorney's secretary to this effect is attached to the Union's reply. Additionally, the Union contends that receipt by the Board of the exceptions on August 27 constitutes substantial compliance with the required time limits. Finally, the Union argues that Respondent has failed to show that it was prejudiced by the late delivery of the exceptions.

We are unable to resolve, on the record before us, the factual conflict as to the date that the Union's exceptions were actually placed in the mail. Assuming, however...

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