Fuchs Baking Co.

National Labor Relations Board - Board Decisions

Feb 24, 1969

174 N.L.R.B. 720 (N.L.R.B. 1969)

720 DECISIONS OF,NATIONAL LABOR RELATIONS BOARD
Fuchs Baking ' Co. and General Sales Drivers &
Allied Employees Union Local 198, an affiliate of
International Brotherhood of Teamsters,
Chauffeurs, Warehousemen & Helpers of America,
Petitioner . Case 12-RC-3087'
February 24, 1969
DECISION ON REVIEW, ORDER, AND
DIRECTION OF SECOND ELECTION
BY MEMBERS FANNING, JENKINS, AND ZAGORIA
Pursuant to a Decision and Direction of Elections
issued by the Acting Regional Director, Region 12,
on July 12, 1968, an election by secret ballot was
conducted on August 14, 1968, under the direction
and supervision of the Regional Director for Region
12, among employees in the separate unit found
appropriate. The tally of ballots showed that, of
approximately 246 eligible voters, 213 cast ballots,
of which 110 were for the Petitioner, 8 for the
Intervenor,2 and 90 cast against the participating
labor organizations. There were 2 void and 5
challenged ballots.
On August 20 and 21, 1968, the Intervenor and
the Employer respectively filed separate objections
to conduct affecting the results of the elections. The
Regional Director caused an investigation to be
made and on October 10, 1968, issued his
Supplemental Decision, Order, and Certification of
Representative, in which he overruled the objections
in their entirety. The Intervenor and Employer each
filed timely Requests for Review of the Regional
Director's Supplemental Decision. On November 14,
1968, the Board , by telegraphic Order, granted the
Intervenor's Request for Review and denied the
Employer's.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a
three-member panel.
The Board has considered the entire record in this
case with respect to the issues under review and
'In the companion Case 12-RC-3105, the Board has previously denied
the Employer' s Request for Review of the Supplemental Decision therein.
Said case is hereby severed for purposes of this decision.
'American Bakery & Confectionery Workers' International Union,
AFL-CIO, Local 249, was permitted to intervene on a basis of current
showing of interest in the unit.
makes the following findings:
The Intervenor's objection to the election is based
on the Employer's failure to furnish an eligibility
list, with names and addresses of eligible employees
as required by Excelsior Underwear Inc., 156
NLRB 1236. In view of the fact that the Intervenor
secured only 8 out of 215 ballots cast, less than 4
percent of the total ballots cast, the Regional
Director concluded it would not effectuate the
purposes of the Act to set aside the election in
which the Petitioner obtained a majority of the
votes. We disagree.
It is true, as the Regional Director notes, that the
Board does not mechanically apply the Excelsior
rule, and under certain circumstances has not
insisted upon literal adherence to its requirement.
But in those cases, the employee lists were actually
furnished by the employer and the Board regarded
such submission under the circumstances to be
substantial compliance with the rule.3 However, here
there was no submission by the Employer whatever.
In our opinion, to make the election results the
controlling factor in determining whether to excuse
the lack of compliance with the rule subverts one of
its very purposes, viz, "to provide the Union [or
unions as the case may be] with the opportunity to
inform the employees of its position in order that
the employees may intelligently exercise their right
to vote."4
Accordingly, we hereby sustain the Intervenor's
objection and we shall set aside the election
conducted herein and direct a second one.
ORDER
It is hereby ordered that the election conducted
herein on August 14, 1968, be, and it hereby is, set
aside.
[Direction of Second Elections omitted from
publication.]
'See Program Aids Company , Inc, 163 NLRB No. 54, United States
Consumer Products , 164 NLRB No 158, and Taylor Publishing
Company, 167 NLRB No 50.
'United States Consumer Products, supra.
'An 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 12 within 7 days after the date of this Notice of Second
Election. 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 , supra
174 NLRB No. 108