Chemical Technology, Inc.

National Labor Relations Board - Board Decisions

Nov 4, 1974

214 N.L.R.B. 590 (N.L.R.B. 1974)

590 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Chemical Technology, Inc. and Amalgamated Munici-
pal Employees Local Union 1231 of L.I .U., AFL-
CIO, Petitioner . Case 5-RC-8682
November 4, 1974
DECISION ON REVIEW, ORDER, AND
DIRECTION OF SECOND ELECTION
BY MEMBERS FANNING, KENNEDY, AND PENELLO
On June 6, 1974, the Regional Director for Region
5 issued his Second Supplemental Decision and Cer-
tification of Results of Election in the above-entitled
proceeding, in which he adopted the Hearing
Officer's findings and recommendations overruling
Petitioner's Objections 2 and 3, overruled, contrary
to the Hearing Officer's recommendation, Objection
1 relating to Excelsior requirements, and certified
that neither union ' had been selected as the exclu-
sive representative of the employees in the appropri-
ate unit.2 Thereafter, the Petitioner filed a timely re-
quest for review of the Regional Director's Second
Supplemental Decision and Certification of Results
of Election on the grounds, inter aka, that he depart-
ed from officially reported Board precedent in over-
ruling Objection 1.
On August 5, 1974, the Board by telegraphic order
granted the request for review.
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 au-
thority in this proceeding to a three-member panel.
The Board has considered the entire record in this
case with respect to the issues under review and
makes the following findings:
The Regional Director, in disagreement with the
Hearing Officer, found that the 6-day delay in fur-
nishing an initial Excelsior list was "cured" by the
subsequent submission 6 days before the election of a
second list which corrected the inaccuracies and
omissions I of the first list. He found substantial
compliance with the purposes of Excelsior because
the Petitioner was afforded sufficient opportunity
under the circumstances of this case to inform the
employees of its position as it had the original list for
20 days and could thereby reach 92 percent of the
eligibles during that time and could ascertain and
inform the additional 10 employees during the 6 days
after receiving the second list.
The request for review asserts that the Regional
Director has "invented a totally new version of sub-
stantial compliance" which entirely disregards the 7-
day limit specified in the direction of election and
ignores the Employer's "complete lack of excuse" as
though these standards had never appeared in Board
cases.4 It contends that the Regional Director's find-
ing substantial compliance with Excelsior herein con-
stitutes an unwarranted departure from such prece-
dent as Rockwell Manufacturing Company, 201
NLRB 358 (1973). We agree. In that case, the Board
set aside an election where the list was filed 11 days
late and there were no extenuating circumstances of
substance, rejecting the employer's assertion that the
union had been afforded ample opportunity to com-
municate with the employees because it had had a
complete and accurate eligibility list in its possession
for 23 days prior to the election. We also agree with
the Hearing Officer's finding that 6 days' access to
the second and more complete list was insufficient
time to cure the substantial omissions from the initial
list or to rebut the Board's presumption of prejudice
to the Union's opportunity of access to unit employ-
ees. As we recently stated, "the Board has consistent-
ly held employers to strict compliance with the re-
quirements of the Excelsior rule in the absence of
extenuating circumstances of substance."5 The Hear-
ing Officer found, and we agree, that extenuating cir-
cumstances are absent here.
Accordingly, we conclude that the Employer has
not complied with the Excelsior requirements. We
therefore find merit in Petitioner's Objection 1 and
shall set the election aside.'
i Industrial , Technical and Professional Employees, Division of National
Maritime Union of America, AFL-CIO, was the Intervenor herein
2 There were 120 names on the two Excelsior lists submitted by the Em-
ployer The tally of ballots for the election conducted on December 10,
1973, showed that, of 55 voters, 53 cast valid votes 18 for Petitioner, 7 for
Intervenor , and 28 against the participating labor organizations , and 2 bal-
lots were challenged The Acting Regional Director on January 31, 1974,
issued a Supplemental Decision and Notice of Hearing in which he over-
ruled the Petitioner 's Objection 4 and ordered a hearing on the remaining
Objections 1, 2, and 3
The list contained numerous inaccuracies , erroneously included the
names of ineligible shift leaders and others , and omitted at least 10 eligible
voters in a unit of 120 The number of omissions was substantial
4 They are contained within the statement of the Excelsior rule as stated
in each direction of election since Excelsior Underwear Inc, 156 NLRB 1236
(1966) "[A[n election eligibility list, containing the names and addresses of
all eligible voters , must be filed by the Employer within 7 days No
extension of time to file this list may be granted except in extraordinary
circumstances Failure to comply with this requirement shall be grounds for
setting aside the election whenever proper objections are filed "
5 See Ben Pearson Plant, Consumer Division, Brunswick Corporation, 206
NLRB 532 (1973), setting aside an election because the union had had
access to the Excelsior list for only 6 days prior to the election without
allocating to anyone blame for such delay
a In view of this finding , we find it unnecessary to consider the other
issues raised in the request for review and relating to Objections 2 and 3
214 NLRB No. 50
CHEMICAL TECHNOLOGY, INC. 591
ORDER [Direction of Second Election and Excelsior foot-
It is hereby ordered that the election conducted
note omitted from publication.]
herein on December 10, 1973, be, and it hereby is, set
aside.