LeMaster Steel Erectors

National Labor Relations Board - Board Decisions

Aug 31, 1984

271 N.L.R.B. 1391 (N.L.R.B. 1984)

LEMASTER STEEL ERECTORS
LeMaster Steel Erectors, Inc. and Eastern Indiana
District Council of Carpenters and Joiners of
America, a/w United Brotherhood of Carpenters
and Joiners of America, Petitioner. Case 25-
RC-7859
31 August 1984
DECISION AND CERTIFICATION OF
RESULTS OF ELECTION
BY CHAIRMAN DOTSON AND MEMBERS
ZIMMERMAN AND HUNTER
The National Labor Relations Board, by a three-
member panel, has considered objections to an
election held 13 December 1982 and the hearing
officer's report recommending disposition of them.
The election was conducted pursuant to a Stipulat-
ed Election Agreement. The tally of ballots shows
14 for and 39 against the Petitioner, with 6 chal-
lenged ballots, an insufficient number to affect the
results.
The Board has reviewed the record in light of
the exceptions and brief and has decided to affirm
the hearing officer's findings' and recommenda-
tions only to the extent consistent with this Deci-
sion and Certification of Results of Election.
The hearing officer found that the Employer did
not substantially comply with the Board's Excelsi-
or' rule because it withheld the number, the identi-
ty, and the temporary living addresses of the eligi-
ble voters working out of state during the election
campaign. We do not agree with the hearing offi-
cer's findings.
On 24 November 1982 the Union timely received
an Excelsior list containing the names and perma-
nent residential addresses of all 62 eligible voters.
The parties stipulated that six of those eligible
voters were continuously employed at an out-of-
state construction site between the date for deter-
mining voter eligibility of 13 November 1982 and
the date of the election. The Excelsior list provided
did not identify these six employees or state their
temporary living addresses.
We find that by providing the names and perma-
nent residential addresses of the 62 eligible voters
the Employer substantially complied with the Ex-
celsior rule. The six employees assigned out of state
comprised only 9 percent of the eligible voters. We
also note that these employees were at their perma-
' The Employer has excepted to some of the hearing officer's credibil-
ity findings. The Board's established policy is not to overrule a hearing
officer's credibility resolutions unless the clear preponderance of all the
relevant evidence convinces us that they are incorrect. Stretch-Tex Co..
118 NLRB 1359, 1361 (1957). We find no basis for reversing the findings.
In the absence of exceptions thereto we adopt pro forma the hearing
officer's recommendation that Objections 2(a) through (e) and Objection
6 be overruled.
2 Excelsior Underwear, 156 NLRB 1236 (1966)
271 NLRB No. 218
nent residential addresses 10 of the 19 days be-
tween receipt of the Excelsior list and the election
date including the 5 days immediately preceding
the election date. The Petitioner therefore had
ample opportunity for personal contact with these
six employees. In all the circumstances, we are
staisfied that the refusal to supply the names and
temporary residences of the six employees did not
evidence bad faith on the Employer's part. We ac-
cordingly overrule Objection 1(b) contrary to the
hearing officer's recommendation.
We shall certify the results of the election as the
Petitioner's objections have been overruled and as
the tally of ballots shows that a majority of ballots
have not been cast in favor of the Petitioner.
CERTIFICATION OF RESULTS OF
ELECTION
IT IS CERTIFIED that a majority of the valid bal-
lots have not been cast for Eastern Indiana District
Council of Carpenters and Joiners of America, a/w
United Brotherhood of Carpenters and Joiners of
America, and that it is not the exclusive representa-
tive of these bargaining unit employees.
MEMBER ZIMMERMAN, dissenting.
Contrary to my colleagues, I would affirm the
hearing officer's finding that the Employer failed
to comply substantially with the Excelsior rule
when it withheld from the Petitioner the number,
names, and temporary living addresses of eligible
voters working out of state during the election
campaign. Thus, I would set aside the election and
direct a second election in the appropriate unit.
The evidence shows that when the Petitioner re-
ceived the Excelsior list on 24 November 1982, it
was aware that some employees were working out-
side the State, but did not know their number,
identities, or location. The Petitioner requested that
the Employer provide it with the names and out-
of-state addresses of these employees, but the Em-
ployer refused to do so. After 13 November--the
date for determining voter eligibility-the employ-
ees working out of state returned to their homes
twice: for the Thanksgiving holiday, from 24
through 28 November and from approximately 8
through 13 December, to vote in the election. Inas-
much as the Petitioner did not receive the Excelsior
list until 24 November, it is unlikely that it was
able to communicate with the employees by mail
during their first visit home, particularly since it
was a holiday period which encompassed a week-
end. Because the Petitioner was unaware of the
identities of the employees or of the fact that they
had returned home, there was little or no possibili-
ty of any personal or verbal contact with them.
1391
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The hearing officer found ao evidence that the Pe-
titioner was aware of the employees' return home
several days before the election. Thus, she conclud-
ed that the employees' sole opportunity to receive
communications at their homes was limited to the
receipt of documentary information approximately
4 days before the election. I agree with the hearing
officer's determination that "[T]he form of the
communication and the time of its receipt in rela-
tion to the election precluded any meaningful dia-
logue between the employees and Petitioner con-
cerning issues pertinent to the election."
Withholding from the Petitioner the number,
identity, and temporary addresses of employees
working out of state during the election campaign
deprived the Petitioner of the opportunity to com-
municate with those employees just as effectively
as if the Employer had denied the Petitioner access
to their names and addresses altogether. In this
regard, it is significant that the Employer's non-
compliance here was in bad faith. Despite twice
being requested by the Petitioner to provide the
names and temporary addresses of employees
working out of state and despite possessing that in-
formation, the Employer refused to perform the
simple task of providing those names and addresses
to the Petitioner.' Unlike my colleagues, therefore,
I would find in these circumstances that failure to
provide the pertinent addresses of more than 9 per-
cent of the eligible voters constitutes substantial
failure to comply with the Excelsior rule.
Accordingly, I would find merit to the Petition-
er's Objection l(b), and direct a second election.
I See. e.g., North American Space Operations, 235 NLRB 1159, 1160
(1978); Sonfarrel. Inc., 188 NLRB 969 (1971).
1392