Fontainebleau Hotel Corp.

National Labor Relations Board - Board Decisions

Apr 14, 1970

181 N.L.R.B. 1134 (N.L.R.B. 1970)

1134 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Fontainebleau Hotel Corporation and Hotel, Motel
and Restaurant Employees Union , Local 166,
AFL-CIO, Petitioner . Case 15-RC-4253
April 14, 1970
DECISION AND CERTIFICATION OF
RESULTS OF ELECTION
BY MEMBERS FANNING, BROWN, AND JENKINS
Pursuant to a Stipulation for Certification upon
Consent Election approved on October 7, 1969, by
the Regional Director for Region 15 of the National
Labor Relations Board , an election by secret ballot
was conducted on October 24, 1969, under his
direction and supervision among the employees in
the stipulated unit. At the conclusion of the election,
the parties were furnished with a tally of ballots
which showed that of approximately 300 eligible
employees, 284 cast ballots, of which 125 were for,
and 138 against the Petitioner; 19 were challenged
and 2 were void. The challenges were sufficient in
number to affect the results. Thereafter, the
Petitioner filed timely objections to conduct
affecting the results of the election.
In accordance with National Labor Relations
Board Rules and Regulations, the Regional Director
conducted an investigation and, on December 30,
1969, issued and served on the parties his Report on
Objections and Challenged Ballots, in which he
recommended that 16 challenges be sustained and 3
overruled, that the objections be overruled, and
inasmuch as 3 challenges could not affect the
results, that the Board issue a certification of
results. Thereafter, the Petitioner filed timely
exceptions to the Regional Director's Report and
the Employer filed an answering brief.
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.
Upon the entire record in this case, the Board
finds:
1. The Employer is engaged in commerce within
the meaning of the Act, and it will effectuate the
purposes of the Act to assert jurisdiction herein.
2. The labor organization involved claims to
represent certain employees of the Employer.
3. A question affecting commerce exists
concerning the representation of employees of the
Employer within the meaning of Section 9(c)(1) and
Section 2(6) and (7) of the Act.
4. The parties stipulated, and we find, that the
following employees constitute a unit appropriate
for the purposes of collective bargaining within the
meaning of Section 9(b) of the Act:
All full-time and regular part-time employees at
Employer's Fontainebleau Hotel Corporation, 4040
Tulane Avenue, New Orleans, Louisiana, including
auditing and regular part-time banquet employees;
excluding confidential employees, professional
employees, watchmen and/or guards, and
supervisors as defined in the Act, as amended.
5. The Board has considered the entire record in
this case, including the Regional Director's Report,
the Petitioner's exceptions thereto, and the
Employer's answering brief, and hereby adopts the
Regional Director's findings and recommendations.'
As we have overruled the Employer's exceptions,
and as the tally of ballots shows that the
participating labor organization failed to receive a
majority of the valid ballots cast, we shall certify the
results of the election.
CERTIFICATION OF RESULTS OF
ELECTION
It is hereby certified that a majority of the valid
ballots has not been cast for the labor organization
appearing on the ballot, and that such labor
organization is not the exclusive representative of all
the employees, in the unit herein involved, within the
meaning of Section 9(a) of the National Labor
Relations Act.
The exceptions to the Regional Director 's findings concerning objections
No I, 2, 5, 6, and 8, in our opinion , raise no substantial issues which
would warrant reversal of his recommendations that they be overruled The
request for a hearing thereon is therefore denied The Regional Director's
findings and recommendations with respect to objection No 3 are set forth
in Appendix A, attached hereto Although we do not adopt the Regional
Director 's interpretation therein of our policy set forth in Telonic
Instruments , a Division of Telonic Industries , Inc, 173 NLRB No 87, we
are satisfied , on the basis of his undisputed findings of fact, that the
Employer, in submitting a list of names and addresses which contained a
number of inaccuracies attributable to the failure of employees to inform it
of address changes, provided the information it had in its files, and there is
no indication that the Employer knew of the inaccuracies or exercised bad
faith in submitting such list We therefore affirm the Regional Director's
conclusion that the Employer was in substantial compliance with the
requirements of Excelsior Underwear Inc, 156 NLRB 1236 See Valley
Die Cast Corporation, 160 NLRB 1881 With respect to objections No 4,
7, and 9, in the absence of exceptions thereto, the Regional Director's
recommendations that they be overruled are adopted pro forma
APPENDIX A
(Excerpt from Regional Director's Report on
Objections and Challenged Ballots)
Objection No. 3
The Employer timely submitted an Excelsior list
on October 14, 1969. The Regional Office in turn
made the list available to Petitioner. The Petitioner
in a letter dated October 15, 1969, acknowledged
receipt of the list but did not object to the adequacy
of the names and addresses contained thereon.
Petitioner in examining the list discovered that
many of the addresses supplied on the list were
inaccurate. It corrected those that it knew were
incorrect on the basis of its authorization cards.
These corrections amounted to about 56 in number.
Petitioner had campaign mail for 33 people returned
181 NLRB No. 176
FONTAINEBLEAU HOTEL CORP. 1135
where they had used the addresses supplied on the
list. Three other persons' mail was returned but this
mail was postmarked November 3, 1969. Three
other persons' campaign mail was returned to
Petitioner but this mail was addressed on the basis
of corrections made by Petitioner. The list
submitted by Employer herein contained no first
names but in some instances only first initials of
first names and last names, and in other instances
the first initials of the first and second names and
last names. No evidence was presented that
Employer used any different addresses in its
mailings or that the Employer had any better
information in its possession.
The Employer's attorney [Mr. McComb] stated
that he, along with the payroll clerk of Employer,
compiled the list. A computer contained the
information. The computer is not programmed to
give information on bargaining unit employees and
the machine copy for the payroll period ending
October 3, 1969, contains the names and addresses
of all employees. The information furnished by the
computer is supplied from original records in the
payroll department. An employee is required to
furnish his current name and address at the time he
is hired and unless the employee notifies the
Employer his address remains as originally supplied.
There is no posted or published rule requiring
employees to notify anyone of a change of address.
McComb and payroll clerk went through the
machine copy and eliminated the names of nonunit
employees. The list was then alphabetized and typed
by McComb's secretary. The same initials, names,
and addresses were contained in the Excelsior list as
were contained in the computer machine copy.
The Employer made two mailings of campaign
literature using the names and addresses on the list
and it had 64 envelopes returned by the Post Office
Department. Several employees admitted receiving
mail from the Employer that had been addressed to
their old addresses and had been forwarded by the
Post Office Department.
The Employer's attorney added the names of five
persons to the list at the preelection conference.
These persons were omitted from the original list
inadvertently. Fourteen names were deleted from the
list because they had either ceased to be employed
by Employer or were mistakenly on the list in the
first place. Most of the deletions were initialed by
the union representative, Mr. Grayson, and all of
the additions were initialed by him.
The Excelsior rule will not be mechanically
applied where the Employer has "made some
attempt" to comply with the requirements of the
rule. In the absence of any evidence indicating a
deliberate or grossly negligent attempt to evade the
requirements of the rule,10 an imperfect list will not
be grounds for setting an election aside. For the
above reasons, the undersigned concludes that
Objection No. 3 raises no substantial or material
issue with respect to the election or conduct
affecting the results of the election. Accordingly, it
is recommended that Objection No. 3 be overruled.
10Se TTe onw• Instruments , A Division of Telonic Industries , Inc, 173
NLRB No. 87.