American Petrofina Co. of Texas

National Labor Relations Board - Board Decisions

Jun 1, 1973

203 N.L.R.B. 1055 (N.L.R.B. 1973)

AMERICAN PETROFINA CO. 1055
American Petrofina Company of Texas and J. L.
Blankenship and Chauffeurs, Teamsters and Help-
ers Local 878, International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers of
America . Case 16-RD-560
June 1, 1973
DECISION ON REVIEW, ORDER, AND
DIRECTION OF SECOND ELECTION
By CHAIRMAN MILLER AND MEMBERS FANNING
AND PENELLO
Pursuant to a Decision and Direction of Election
issued by the Regional Director for Region 16 on
November 3, 1972, an election by secret ballot was
conducted on December 4, 1972, under the direction
and supervision of the Regional Director for Region
16, among the employees in the unit found appropri-
ate. The tally of ballots showed that, of approximately
75 eligible voters, 72 cast ballots, of which 53 were for
the Intervenor,' 17 for Chauffeurs, Teamsters and
Helpers Local 878, herein called the Union, and 1
against participating labor organizations. There was
one challenged ballot which was not determinative.
On December 12, 1972, the Union filed timely ob-
jections to conduct affecting the results of the elec-
tions . The Regional Director caused an investigation
to be made and on February 8, 1973, issued his Sup-
plemental Decision and Certification of Representa-
tive, in which he overruled the objections in their
entirety. The Union filed a timely request for review
of the Regional Director's Supplemental Decision
and Certification of Representative. On March 9,
1973, the Board, by telegraphic order, granted the
Union's request for review with respect to Objections
1 and 2, but denied the request for review with respect
to the remaining objection.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its powers
in connection with this case to a three-member panel.
The Board has considered the entire record in this
case with respect to the issues under review and makes
1 The Oil, Chemical and Atomic Workers International Union , AFL-CIO,
was permitted to intervene on the basis of its showing of interest.
the following findings:
In overruling objections 1 and 2, which pertained to
the Employer's failure to furnish an eligibility list with
the names and addresses of the eligible employees as
required by Excelsior Underwear Inc., 156 NLRB
1236, the Regional Director inferred that the
Employer's failure was designed to postpone or delay
any bargaining obligation which might arise through
the election, by giving either of the two competing
labor organizations the right to have the election set
aside in the event it lost the election. Accordingly, the
Regional Director was of the view, that to set aside the
election won by the Intervenor on the basis of the
losing union's objections, would permit the Employer
to take advantage of his own dereliction. We do not
agree.
Although it is true, as noted by the Regional Direc-
tor, that the Board refused to mechanically apply the
Excelsior rule in Nathan's Famous of Yonkers, 186
NLRB 131, the circumstances here do not merit the
unusal exception made in that case . The conclusion in
Nathan's Famous was grounded on the employer's fla-
grant unfair laobr practices which were designed to
defeat the winning union, and there was no evidence
that any union was prejudiced more than another by
the withholding of the Excelsior list. In the circum-
stance, it was concluded that a literal application of
the Excelsior rule would permit the employer therein
to benefit from its illegal actions by providing it with
another opportunity to defeat the winning union.
Such is not the case here where the sole wrongful act
was the Employer's failure to furnish the list. In this
circumstance, we find no reason for deviating from
our announced policy and usual practice of setting
aside an election for the failure to furnish the Excel-
sior list whenever proper objections are filed.34
Accordingly, we hereby sustain the Union's objec-
tion and we shall set aside the election conducted
herein and direct a second one.
ORDER
It is hereby ordered that the election conducted
herein on December 4, 1972, be, and it hereby is, set
aside.
[Direction of Second Election and Excelsior foot-
note omitted from publication.]
2 See Fuchs Baking Co., 174 NLRB 720.
203 NLRB No. 158