Blue Onion

National Labor Relations Board - Board Decisions

Mar 21, 1969

175 N.L.R.B. 9 (N.L.R.B. 1969)

BLUE ONION 9
Custom Catering, Inc., d/b/a Blue Onion Petitioner
and Local Joint Executive Board of Las Vegas,
Nevada, namely, Culinary Workers Union, Local
226, and Bartenders Union , Local 165, affiliated
with Hotel , Restaurant & Bartenders International
Union , AFL-CIO, Union . Case 31-RM-132
March 21, 1969
DECISION ON REVIEW, ORDER, AND
DIRECTION OF SECOND ELECTION
BY CHAIRMAN MCCULLOCH AND MEMBERS
FANNING AND ZAGORIA
Pursuant to a Decision and Direction of Election
issued by the Regional Director for Region 31 on
July 17, 1968, an election by secret ballot was
conducted in the above-entitled proceeding on
August 14, 1968, under his direction and
supervision. In accordance with National Labor
Relations Board Rules and Regulations, a tally was
furnished the parties at the conclusion of the
balloting, which showed that the challenged ballots
were sufficient in number to affect the results of the
election. Thereafter both parties filed timely
objections to conduct affecting the results of the
election.
The Regional Director caused investigations to be
conducted of the objections and challenges and, on
November 12, 1968, issued his Supplemental
Decision and Order in which he sustained the
challenges to certain ballots, overruled the
challenges to others, sustained the Employer's
objection,' and overruled the Union's objections in
their entirety. Thereafter, the Union filed a timely
Request for Review of the Regional Director's
Supplemental Decision.
By telegraphic Order dated December 12, 1968,
the National Labor Relations Board denied the
Union's request for review in part, directed the
Regional Director to open and count the challenged
ballots, and deferred ruling on all other matters
contained in the request for review. Pursuant
thereto, the Regional Director opened and counted
the challenged ballots, and issued and duly served on
the parties a revised tally which indicated that of
approximately 36 eligible voters, 31 cast valid
ballots, of which 9 were for, and 22 against, the
Union. The challenge to one ballot was sustained.
By telegraphic Order dated January 17, 1969, the
Board granted review as to certain of the Union's
objections, deferred ruling as to others, and denied
review as to all the remaining issues.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
Board has delegated its powers in connection with
this case to a three-member panel.
The Board has considered the Regional Director's
Supplemental Decision, the Union's request for
review, and the enire record in this case with
respect to the issue under review, and makes the
following findings:
The Union's objections 1 through 4 allege in
various particulars that the Employer failed to
comply with the requirements of the Board's
Excelsior rule' and that the election should,
therefore, be set aside and a second one directed.
Thus, the Union avers that the lists of employee
names and addresses furnished by the Employer to
the Regional Director were untimely, incomplete
and misleading. The Regional Director found in all
the circumstances that the Employer had
substantially complied with the Excelsior rule, and
he accordingly overruled these objections. In its
Request for Review, the Union renews its
contentions. We find merit in the Union's position.
The Employer operates a lunch counter and
drive-in restaurant. For a period of time not
disclosed in the record, it has recognized the Union
in a unit of all employees. In March 1968, the
Union commenced an economic strike, and the
Employer began hiring replacements for striking
employees. On April 25, the Employer filed the
instant petition. Thereafter, on July 17, the Regional
Director issued his Decision and Direction of
Election, requiring the submission of the Excelsior
list by July 24.
On July 25, the Employer filed an Excelsior list
which omitted the names and addresses of all 11
eligible strikers and of 5 of the eligible
replacements.' Further, the list furnished incorrect
addresses for three of the replacements,4 and
contained the names and addresses of two other
employees later agreed to be ineligible. Thereafter,
the Union protested to a_Board Agent the absence
of the names and addresses of the strikers. The
Board Agent brought the matter to the attention of
the Employer, who on August 5 filed with the
Regional Office a supplemental list containing the
names and addresses of 10 of the strikers, but
omitting the 11th. The supplemental list likewise
omitted the names and addresses of the 5 eligible
replacements previously omitted. The Union
received this supplemental list on August 8, and as
noted above the election was conducted on August
14.
In all the circumstances of this case, we are not
satisfied that the Employer has substantially
complied with the requirements of the Excelsior
rule. Even if we were willing to overlook the late
filing of the original list, that list omitted the names
and addresses of nearly half of the eligible voters.
The supplemental list, itself deficient by the
'Excelsior Underwear Inc , 156 NLRB 1236
'The Employer contended , and the Regional Director found , that the
omission of some or all of the replacements was due to inadvertence
The Employer ' s objection related to the validity of a ballot purportedly 'The Regional Director found that the Employer furnished whatever
mismarked. addresses had been given it by the replacement employees
175 NLRB No. 3
10 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
continued omission of the names and addresses of
six eligible voters, was furnished to the Regional
Director at a time which permitted its utilization in
the Union's informational campaign for only the 6
days preceding the election. Had the entire list been
furnished on July 24, the date set by the Regional
Director for its submission pursuant to the Excelsior
rule, the list would have been available for use
during a period of some 3 weeks.
Nor can we conclude, as we have in other cases,'
that the Employer's failure to provide a complete
and timely list is excused on the basis that the
Employer provided the Regional Director with all
the information it had available. For here, there can
be no question that the Employer could have
furnished the names and addresses of the strikers on
the original list, since it gave almost all of them
promptly on a supplemental list when requested by
the Regional Director. And we cannot accept the
Employer's claim of inadvertence to explain away
its total failure to provide the names and addresses
of the 5 replacements, who constituted one-fifth of
the complement working during the strike.
Accordingly, we shall sustain the Union's
objections 1 through 4, and we shall set aside the
election herein and direct the holding of a new one.6
ORDER
It is hereby ordered that the election conducted
herein on August 14, 1968, among the employees of
Custom Catering, Inc., d/b/a Blue Onion, at its Las
Vegas, Nevada, lunch counter and drive-in
restaurant be, and it hereby is, set aside.
[Text of Direction of Second Election' omitted
from publication.]
'Telonic Instruments, a Division of Telonic Industries , Inc, 173 NLRB
No 87, Valley Die Cast Corporation, 160 NLRB 1881
`Our decision makes it unnecessary to dispose of certain other issues
raised in the Request for Review.
'A revised election eligibility list, containing the names and addresses of
all the eligible voters, must be filed by the Employer with the Regional
Director for Region 31 within 7 days after the date of issuance of the
Notice of Second Election by the Regional Director The Regional
Director shall make the list available to all parties to the election. No
extension of time to file this list shall be granted by the Regional Director
except in extraordinary circumstances Failure to comply with this
requirement shall be grounds for setting aside the election whenever proper
objections are filed Excelsior Underwear Inc , 156 NLRB 1236