Hamlin-Overton Frame Co., Inc.

National Labor Relations Board - Board Decisions

Jul 29, 1975

219 N.L.R.B. 696 (N.L.R.B. 1975)

696 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Hamlin-Overton Frame Company , Inc. and United
Furniture Workers of America , AFL-CIO, Peti-
tioner. Case 7-RC-12835
July 29, 1975
DECISION AND CERTIFICATION OF
REPRESENTATIVE
BY MEMBERS FANNING, KENNEDY, AND PENELLO
Pursuant to a Stipulation for Certification Upon
Consent Election approved on January 31, 1975, an
election by secret ballot was conducted on February
13, 1975, under the direction and supervision of the
Regional Director for Region 7 among the employ-
ees in the stipulated unit. At the conclusion of the
election, the parties were furnished with a tally of
ballots which showed that, of approximately 48 eligi-
ble voters, 43 cast ballots, of which 19 were for Peti-
tioner, 22 for Intervenor,' 2 for neither union, and
none were challenged. Thereafter, on February 19,
1975, the Petitioner filed timely objections to the
election.
In accordance with the National Labor Relations
Board's Rules and Regulations and Statements of
Procedure, Series 8, as amended, the Regional Direc-
tor conducted an investigation and on April 10, 1975,
issued and duly served on the parties his Report and
Recommendations on Objections. The Regional Di-
rector recommended that Petitioner's Objections I
and 2 be overruled, that Objection 3 be sustained,
and that the election be set aside and a new election
held. Thereafter, the Employer and the Intervenor
filed timely exceptions to the Regional Director's re-
port, and the Employer filed a supporting brief. The
Petitioner filed a brief in reply to the Employer's ex-
ceptions and in support of the Regional Director's
sustaining of Objection 3.
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.
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 pur-
poses of the Act to assert jurisdiction herein.
2. The Petitioner is a labor organization claiming
to represent certain employees of the Employer.
3. A question affecting commerce exists concern-
ing the representation of employees of the Employer
1 Woodworkers and Platers Union, Inc (IND.) was permitted to inter-
vene in the hearing
within the meaning of Sections 9(c)(1) and 2(6) and
(7) of the Act.
4. The parties stipulated, and we find, that the fol-
lowing 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 production
and maintenance employees employed by the
employer at its 125 Elkenburg Street, South Ha-
ven, Michigan, facility; but excluding all profes-
sional employees, office clericals, guards and su-
pervisors as defined in the Act.
5. The Board has considered the entire record in
this proceeding, including the Regional Director's re-
port and the exceptions and briefs, and finds as fol-
lows:2
Petitioner argues in its Objection 3 that the elec-
tion should be set aside under the Excelsior rule I
because the Employer's lateness in filing the list led
to Petitioner's having the list for only 6 days prior to
the election. The election was set for the agreed-upon
date of February 13, 1975, and it was accordingly
necessary, under the Excelsior rule, for both unions
to receive the Excelsior list by February 3, 1975. On
January 20, 1975, the Region, pursuant to the agree-
ment of all parties, mailed copies of the Stipulation
for Certification Upon Consent Election to all the
parties and requested that the copies be returned by
January 27. The Employer and Petitioner returned
their copies by January 27, but Intervenor's copy was
not received by the Region until January 30. On Jan-
uary 31, the Regional Director approved the stipulat-
ed agreement and on that day sent the Employer a
standard form requesting the Excelsior list and noted
that the list was due in the Region by February 3.
Apparently, there was a misunderstanding between
the Region and the Employer as to whether an oral
request for the list was made by the Region on or
about January 28. Whatever the misunderstanding,
the Employer did not receive the Region's written
request for the Excelsior list until February 3. There-
after, on February 3, the Employer mailed the Ex-
celsior list to the Region, which in turn mailed copies
of the list to both unions. The unions received the
lists on February 7 and thus had them in their pos-
session for only 6 days prior to the election.
On or about February 3, the Region, having de-
termined that the list would be submitted late, at-
tempted to obtain agreement by all the parties to a
week's postponement of the election. The Employer
and Intervenor agreed to the postponement, but the
2 No exception having been taken thereto, we adopt the Regional
Director's recommendation that Petitioner 's objections I and 2 be over-
ruled
3 Excelsior Underwear Inc, 156 NLRB 1236 (1966).
219 NLRB No. 146
HAMLIN-OVERTON FRAME CO. 697
Petitioner objected on the ground that it had not
been at fault for the delay.
The Regional Director concluded that, regardless
of whb was to blame for the late submission of the
Excelsior list, Petitioner was prejudiced by its late
receipt of the list . The Regional Director further
found that Petitioner 's refusal to agree to a postpone-
ment of the election did not estop Petitioner from
objecting to the election on the basis of not having
received the Excelsior list 10 days before the election.
We disagree with the Regional Director 's latter
conclusion, and we shall not set aside the election. In
this case, a delay in the election of 1 week , as suggest-
ed by the Region and agreed to by the Employer and
the Intervenor , would have adequately cured the ef-
fect of the late submission of the Excelsior list and
permitted both unions access to the list for over 10
days. Petitioner argues for the right to proceed to an
election on the agreed -upon date while also retaining
the right to have the election automatically set aside,
under the Excelsior rule, if it loses . However, it would
be meaningless for the Board to conduct an election,
where two unions are involved, and the losing union
will have a built-in Excelsior objection . Where, as in
this case, there was a reasonable way to cure the po-
tential Excelsior objection prior to the election and
all other parties agreed to it, we shall not allow the
party that refused to agree to correct the Excelsior
list problem to object later on the very basis it re-
fused to correct . Under the circumstances of this
case , we find that a week's delay in the election
would have cured the effect of the late submission of
the Excelsior list. As Petitioner, contrary to the Em-
ployer and Intervenor, opposed the election delay
that would have permitted both unions access to the
Excelsior list for over 10 days , Petitioner is now es-
topped from objecting to the election because of the
late receipt of the Excelsior list. Accordingly , we shall
overrule Petitioner's Objection 3.
As we have overruled all the objections and as the
tally shows that the Intervenor has received a majori-
ty of the valid ballots cast , we shall certify it as the
exclusive bargaining representative of the employees
in the appropriate unit.
CERTIFICATION OF REPRESENTATIVE
It is hereby certified that a majority of the valid
ballots have been cast for Woodworkers and Platers
Union , Inc. (Ind), and that, pursuant to Section 9(a)
of the National Labor Relations Act, as amended,
the said labor organization is the exclusive represen-
tative of all the employees in the unit found appro-
priate herein for the purposes of collective bargaining
in respect to rates of pay, wages , hours of employ-
ment , or other conditions of employment.
MEMBER KENNEDY, concurring:
I concur in the result on the particular facts of this
case . I think it significant that the Excelsior list was
submitted immediately upon notification that the
stipulation for certification had been approved by
the Regional Director . However , I do not believe
that any time an employer submits the Excelsior list
late in an election involving two unions, the unions
must agree to a postponement of the election or fore-
go their right to object to the election because of the
late submission of the Excelsior list. Such a general
rule tends to encourage the late submission of the
Excelsior list where postponement • of the election
might be the result sought to be accomplished.