C & G Markets, Inc.

National Labor Relations Board - Board Decisions

Sep 24, 1984

272 N.L.R.B. 294 (N.L.R.B. 1984)

294 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
C & G Markets, Inc , d/b/a Gerland's Food Fair
and Jeannine J Rico, Petitioner, and Untied
Food & Commercial Workers Local Union No
455, AFL-CIO Case 23-RD-525
24 September 1984
DECISION AND DIRECTION OF
SECOND ELECTION
BY CHAIRMAN DOTSON AND MEMBERS
HUNTER AND DENNIS
The National Labor Relations Board, by a three-
member panel, has considered objections to a de-
certification election held 9 June 1983 and the
hearing officer's report recommending disposition
of them The election was conducted pursuant to a
Stipulated Election Agreement The tally of ballots
shows 90 for and 85 against the Petitioner, with 14
challenged ballots, a sufficient number to affect the
results
The Board has reviewed the record in light of
the exceptions, and has adopted the hearing offi-
cer's findings' and recommendations only to the
extent consistent with this decision and finds that
the election must be set aside on the basis of Objec-
tion 3 and a new election held 2
The hearing officer concluded that the Employ-
er's Objection 3 be overruled He found that the in-
dividual Petitioner was not prejudiced in communi-
cating her union views to employees as a result of
the Regional Office's failure to serve her with a
copy of the Excelsior list 3 We disagree
The facts in this case are not in dispute The Em-
ployer operates 4 retail grocery stores and employs
approximately 250 employees Three of the stores
are in Galveston, Texas, and the fourth store is lo-
cated 70 miles away in Humble, Texas
In compliance with Board requirements, the Em-
ployer submitted the Excelsior list to the Regional
Office 25 May 1983 4 That same day, the Regional
Officer furnished the list to the Union However,
due to an administrative oversight the Regional
Office did not serve the individual Petitioner, Jean-
nine Rico, with a copy of the list nor did she ever
request the list from the Office
1 The Employer has requested oral argument The request is denied as
the record, exceptions, and briefs adequately present the Issues and the
positions of the parties
2 In view of our determination that the election be set aside on the
basis of Objection 3, we find It unnecessary to pass on the Employer s
exceptions to nine of the challenged ballots
3 The Excelsior rule requires that, within 7 days after the Regional DI
rector has approved a consent election agreement entered Into by the
parties, or after the Regional Director or the Board has directed an elec
lion, the employer must file with the Regional Director an election eligi
Nifty list, containing the names and addresses of all the eligible voters
Excelsior Underwear, 156 NLRB 1236, 1239-40 (1966) Such list is then
forwarded to the union or petitioning party
4 All dates are in 1983 unless otherwise indicated
On 3 June, 6 days prior to the election, the Peti-
tioner requested from her store manager the names
and addresses of all eligible voters at the four
stores because she wanted to mail them a campaign
letter to express her opposition to the Union Later
that day, the store manager gave the Petitioner a
copy of the Excelsior list On 4 June the Petitioner
prepared her campaign letter and mailed it to the
voters 5 June Apart from this letter the Petition-
er's other means of communicating her union views
to employees were by talking to a few coworkers
while working and conversing with some by tele-
phone in the evenings The Petitioner testified that
prior to 3 June she was unaware of her entitlement
to the Excelsior list and that she would have sent
her campaign letter out earlier if she had received
the list sooner However, she also stated that she
had received election materials from the Regional
Office, but had never made any inquiries to the
Office regarding an Excelsior list of the voters She
testified that she wanted to wait "almost to the end
of the campaign to mailout" believing that the
letter would then have a greater impact on the em-
ployees After the election several employees told
the Petitioner that they had received her letter, but
it "arrived a little too late
The hearing officer found that the Petitioner was
not prejudiced in her ability to communicate her
views to voters by the late receipt of the Excelsior
list The hearing officer determined that the Peti-
tioner did not need the list until 3 June as demon-
strated by the Petitioner's wanting to wait until the
end of the campaign to do her mailout and from
the dates of preparation and mailout of the cam-
paign letter The hearing officer further found un-
persuasive the Petitioner's testimony that she
would have sent the letter earlier if she had re-
ceived the list sooner and apparently reasoned that
the responsibility to acquire the list shifted to the
Petitioner since she had received election informa-
tion from the Regional Office and had never con-
tacted the Office for the actual list Based on these
findings the hearing officer concluded that the Pe-
titioner was not prejudiced by the Regional Of-
fice's total failure to serve her a copy of the Excel-
sior list
Contrary to the hearing officer, we find that the
Petitioner has suffered substantial prejudice in her
ability to adequately inform voters of her opposi-
tion to the Union as a result of the Regional Of-
fice's noncompliance with the Excelsior rule Since
the Excelsior policy was designed to enhance the
availability of information and arguments to em-
ployees, it follows that any disruption in these
channels of communication can undermine the
policy Here, the Petitioner, who campaigned
272 NLRB No 52
GERLAND'S FOOD FAIR 295
alone, had the task of communicating her position
to 175 voters This task was compounded inasmuch
as eligible voters were spread between four stores
The Petitioner's only viable means of communicat-
ing her views to employees was by mail Because
of the Region's failure to serve the Petitioner with
an Excelsior list, she did not have an adequate op-
portunity to timely advise employees of her views
with respect to the Union This lack of opportunity
was evidenced by employee comments that they
received the list "a little too late" and by the Peti-
tioner's statement that she would have sent the
letter earlier if she received that letter sooner
Furthermore, we do not agree with the hearing
officer that, because the Petitioner received elec-
tion information from the Regional Office, she bore
the responsibility of acquiring the list from the
Office The instant case is clearly distinguishable
from Red Carpet Maintenance Corp, 263 NLRB
1285 (1982) In Red Carpet we found that a union
was not prejudiced by a 1-day delay in its receipt
of the list Unlike Red Carpet, here the Petitioner
never received the list from the Regional Office
and the Petitioner is not a lawyer or union official
who is familiar with Board election procedures
Therefore, the Petitioner was under no obligation
to take affirmative steps to acquire the list
In these circumstances, we find that the Regional
Office's failure to provide the Petitioner with the
Excelsior list does not constitute substantial compli-
ance with Excelsior requirements and that therefore
the election must be set aside and a second election
be directed
[Direction of Second Election omitted from pub-
lication]