Associated Air Freight, Inc.

National Labor Relations Board - Board Decisions

Feb 8, 1980

247 N.L.R.B. 990 (N.L.R.B. 1980)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Associated Air Freight, Inc. and Miscellaneous Ware-
housemen, Drivers & Helpers Local 986; Interna-
tional Brotherhood of Teamsters, Chauffeurs,
Warehousemen & Helpers of America, Petitioner.
Case 3 1-RC-4390
February 8, 1980
DECISION AND DIRECTION OF SECOND
ELECTION
By CHAIRMAN FANNING AND MEMBERS JENKINS
AND PENELLO
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 the objections to an
election held on March 29, 1979,' and the Regional
Director's report recommending disposition of same.
The Board has reviewed the record in light of the
exceptions and briefs, and hereby adopts the Regional
Director's findings2 and recommendations.'
[Direction of Second Election omitted from publica-
tion.]'
MEMBER PENELLO, dissenting:
I would not set aside the election in this case but
would instead overrule Objection 1. As noted in my
dissenting opinions in Kilgore Corporation ' and
subsequent cases," it is the burden of the party filing
the objection to establish that the conduct objected to
affected the election. The Petitioner has not met that
burden here. There is no evidence that the employees
were unaware of or misunderstood their rights or the
procedures involved in the election. Given the fact
that the notices were posted in conspicuous places for
all employees to see at least I full day prior to the
election,' it must be presumed, in the absence of
contrary evidence, that the employees had the oppor-
tunity to read the notices and that they knew and
understood their rights with respect to the election.
Nor is there evidence that any employees were
foreclosed from voting because they did not see the
official notices earlier and were unaware of the date,
time, and place of the election. On the contrary, it
appears that the employees were well aware of the
election date, since 21 of the 23 eligible voters cast
ballots. Further, there is no indication that the two
employees who did not vote were unaware of the
election.8 Accordingly, I would certify the results of
the election.9
' The election was conducted pursuant to a Stipulation for Certification
Upon Consent Election. The tally was 4 for, and 16 against, the Petitioner;
there was I challenged ballot, an insufficient number to affect the results.
In the absence of exceptions we adopt, proforma. the Regional Director's
recommendation that the Petitioner's Objection 2 be overruled and his
247 NLRB No. 158
findings with respect to conduct not specifically raised by the Petitioner in its
objections.
' The Regional Director's discussion of Objection I1 which we adopt in its
entirety, is attached as an appendix.
Our findings are consistent with Board precedent which was not changed
by Printhouse Company Inc. and Dennison Ticket, Printhouse Division. 246
NLRB No. 112 (1979), where a Board majority (Chairman Fanning and
Member Jenkins dissenting) refused to set aside an election despite an
allegation of late posting. However, Member Truesdale indicated that he
adhered to the principles established in Kilgore Corporation. 203 NLRB 118
(1973), but found the facts in Printhouse distinguishable. Contrary to Member
Pennello's views, we find that tile facts presented here are significantly
different from those in Printhouse. Here. the Regional Director found that in
view of the various different work schedules of the employees, the employees
could not have been reasonably afforded an opportunity to review the notice
prior to the day of the election. Therefore, notwithstanding our disagreement
with Printhouse, we find it not controlling.
[ Excelsior footnote omitted from publication.]
'203 NLRB 1 18 (1973), enforcement denied 510 F.2d 1165 (6th Cir. 1975).
"See, e.g., Congoleum Industries. Carpet Division. 227 NLRB 108 (1976);
The Singer Company. U.S. Sewing Products Division. District One, 238 NLRB
264 (1978); Thermalloy Corp.. 233 NLRB 428 (1977).
I see no essential difference between the facts presented here and those in
Printhouse Company. Inc.. 246 NLRB No. 112 (1979). in which the Board
refused to set aside an election even though it was alleged that the Board
notice was posted I day before the election. My colleagues would distinguish
this case on the ground that because of their different work schedules some of
the employees here did not have a reasonable opportunity to review the notice.
Yet no one claims that a single employee was unaware of the election or
misunderstood his or her rights with respect thereto. In fact, of the two
employees who did not vote, one had not reported to work for several weeks
and could not have availed himself of the election information in any event.
Absent a showing that the late posting in any way affected the results of the
election, I see no valid reason why the employees' expression of choice should
be frustrated.
' In fact, one of these employees had not reported to work for several weeks
prior to the election and could not have availed himself of the election
information in any event.
The Regional Director recommended that, if the Board found that the
election should not be set aside on the basis of Objection 1, a hearing should
be held concerning certain alleged conduct by the Employer not specifically
objected to by the Petitioner. In the absence of a specific written objection I
would not order a hearing with respect to this alleged conduct. See my
dissenting opinion in Dayton Tire & Rubber Co.. 234 NLRB 504 (1978).
Finally, in agreement with my colleagues, I would, in the absence of
exception, adopt pro forma the Regional Director's recommendation that
Objection 2 be overruled.
APPENDIX
Objection No. I
The Employer failed to properly post the "Notice of
Election" in a timely manner.
The Petitioner's witness contends that the election notices
were not posted as of 4 p.m. on March 27, 1979, and that she
saw the notices for the first time when she reported for work
at 7 a.m. on March 28, 1979. The Employer contends that
two notices were posted at about 9:30 a.m. on March 27,
1979, one on the office bulletin board and the second on the
dock bulletin board. The election was held on March 29,
1979, from 11:45 a.m. to 12:45 p.m. and from 6:45 p.m. to
7:30 p.m.
The evidence reveals that Region 31 mailed the Notices of
Election to the parties on March 20, 1979. Max B. Keesling,
the District Manager, contends that his secretary did not
give him the notices until March 26, 1979. Yet, by
Keesling's own admission, because, after reading Region
31's letter transmitting the notices, he sensed no particular
urgency, he did not post the notices immediately upon
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ASSOCIATED AIR FREIGHT, INC.
receipt, but instead, waited until the morning of March 27,
1979, a scant two days before the election. A copy of the
cover letter, attached hereto as Exhibit A, required the
Employer to post the notices immediately in conspicuous
places.
The Employer asserts that 21 of the 23 eligible voters
voted and that all employees were advised of the date of the
election through campaign literature which the Employer
had mailed to all employees prior to the election. The
Employer asserts that neither of the two voters, who did not
vote in the election, reported to work on March 29, 1979.
One of the two employees was outside California on the day
of the election while the second employee, who worked at
irregular intervals, had not reported to work for several
weeks Prior to the election.
Although the Board has never established a rule specify-
ing the time before an election when a Notice of Election
must be posted, where no valid excuse is offered by an
employer for a late posting of notices, the Board has found
late posting to be the basis for ordering a new election,
regardless of whether employees were otherwise notified of
the election time and regardless of the fact that virtually all
of the eligible voters cast ballots in the election. See
Congoleum Industries. Carpet Division, 227 NLRB 108
(1976): The Singer Company. 238 NLRB No. 229 (1978).
Furthermore, the mere fact that a large percentage of the
eligible voters cast ballots in the election is not dispositive for
a large voter participation may have occurred whether or
not notices had been posted at all. See Kilgore Corporation,
203 NLRB 118 at 118-119.
The fact that the campaign literature which was sent by
the Employer to all of its employees contained a reminder of
the date of the election and the fact that a large percentage of
the eligible employees voted does not obviate the necessity
for prompt posting of notices. The Employer's campaign
literature can in no way replace an official Board notice,
which provides the employees with an official statement not
only of the date, time and place of polling, but also informs
them of the eligibility requirements, and the type of ballot to
be used. In addition, the official election notice includes
important information regarding the rights of employees
under the Act and such information serves to alert employ-
ees as to their rights and to caution both unions and
employers against engaging in conduct tending to impede a
free and fair election. See Kilgore Corporation. supra at 118-
119. A late posting of the official notice may deprive
employees who have received campaign literature of an
opportunity to evaluate the content of the campaign litera-
ture.
Included on the voting eligibility list were full-time and
part-time employees from both the day and evening shifts.
The investigation reveals that some employees worked only
Saturdays and others worked only at irregular intervals and
consequently could not have been reasonably afforded an
opportunity to review the notice prior to the day of election.
In view of the various different work schedules of its
employees, it was incumbent upon the Employer to post the
notices promptly upon receipt in order to afford sufficient
advance notice of the election to as many employees as
possible.
The evidence is in confict as to when the posting occurred
on March 27, 1979. Assuming, arguendo, that the notices
were posted in the morning of March 27, 1979, as the
Employer contends, in my view, such a late posting in the
circumstances here presented, failed to give employees
sufficient advance notice of the election and constituted a
substantial disregard of the posting instructions which
accompanied the notices.
Further, the Board's notice posting requirement is not to
be lightly regarded by employers. If this Employer, who
offered no excuse for its last minute posting, is not to be held
accountable, other employers would be encouraged to also
ignore the posting requirement. See Congoleum Industries.
Carpet Division, supra at 109. 1 conclude, therefore, that the
election should be set aside due to the late posting of notices
and, accordingly, I will recommend that Petitioner's Objec-
tion No. I be sustained.
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