Pole-Lite Industries Ltd.

National Labor Relations Board - Board Decisions

Apr 22, 1977

229 N.L.R.B. 196 (N.L.R.B. 1977)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Pole-Lite Industries Ltd. and Teamsters Local Union
648, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of Ameri-
ca, Petitioner. Case 3-RC-6789
April 22, 1977
DECISION AND DIRECTION
BY MEMBERS JENKINS, PENELLO, AND
WALTHER
Pursuant to a Stipulation for Certification Upon
Consent Election approved by the Regional Director
for Region 3 on December 10, 1976,1 an election by
secret ballot was conducted on January 6, 1977,
under the Regional Director's direction and supervi-
sion among 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 29 eligible voters for the election, 27
cast valid ballots, of which 14 were for and 13 were
against the Petitioner. One ballot was challenged,
which is sufficient in number to affect the results of
the election. Thereafter, the Petitioner timely filed
objections to conduct affecting the results of the
election.
In accordance with the National Labor Relations
Board Rules and Regulations, Series 8, as amended,
the Regional Director conducted an investigation,
and on February 8, 1977, he issued and duly served
on the parties his Report on Objections and
Challenge. His report recommended that the chal-
lenge by the Petitioner to the ballot of Hiriam Abare
and Petitioner's Objections 2 and 3 be overruled, but
Objection I be sustained. Thereafter, the Employer
timely filed exceptions to the Regional Director's
report insofar as it recommended that the results of
the election be set aside on the basis of Objection I,
which alleged that the Employer did not comply with
the Excelsior rule. 2
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority 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
purposes of the Act to assert jurisdiction herein.
2. The labor organization involved claims to
represent certain employees of the Employer.
I All dates herein are in 1976, unless otherwise indicated.
Excelsior Underwear Inc., 156 N LR B 1236 (1966).
The Excelsior rule requires that, within 7 days after the Regional
Director has approved a consent-election agreement entered into by the
229 NLRB No. 6
3. A question affecting commerce exists concern-
ing the representation of employees of the Employer
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
following employees of the Employer constitute a
unit appropriate for the purpose of collective
bargaining within the meaning of Section 9(b) of the
Act.
All production and maintenance employees em-
ployed by the Employer at its Champlain, New
York facility and excluding all office clerical
employees and guards, professional employees
and supervisors within the meaning of the Act.
5. The Board considered the Regional Director's
report, the Employer's exceptions and brief, and the
entire record in the case, and hereby adopts the
Regional Director's recommendation only to the
extent consistent herewith.
The Union contends in Objection I that the
Employer failed to submit in a timely fashion a list of
employees eligible to vote in the upcoming election,
as required by Excelsior Underwear, supra, based on
the fact that the list arrived 3 days late at the Board's
Resident Office in Albany, New York, and that the
Petitioner did not receive the list until 3 days later.3
Thus, the issue presented in this case is whether the
Employer substantially complied with the require-
ment of the Excelsior rule.
By executing the Stipulation for Certification Upon
Consent Election, the Employer agreed to be bound
by the Board's requirement that the Excelsior list be
filed within 7 days thereafter (by Friday, December
17). The Employer maintains that it sent a list to the
Resident Office on December 17 via a commercial
bus line to be hand-delivered on that date. Due to a
delay in the arrival of the bus caused by the holiday
traffic, the Employer contends, the list was not hand-
delivered until Monday, December 20, the next
business day.
The investigation by the Regional Director reveal-
ed that the Employer's list, which was received by the
Board on December 20, failed to include the
addresses of the eligible employees. The Resident
Office contacted the Employer's attorney and ar-
rangements were made to dictate the addresses
telephonically to the Board, which was accomplished
that same day. The list was also sent to the Petitioner
on that day, December 20, and received on Decem-
ber 23.
parties, or after the Regional Director or the Board has directed an election,
the employer must file with the Regional Director an election eligibility list,
containing the names and addresses of all the eligible voters. 156 NLRB at
123940. Such list is then forwarded to the union.
196
POLE-LITE INDUSTRIES LTD.
The Employer asserts that inasmuch as the list was
effectively received by the Board only 3 calendar
days but merely 1 working day late, since Petitioner
received the list 14 days prior to the election, and
whereas the unit contained only 29 eligible voters,
the Employer substantially complied with the Excel-
sior rule. Thus, the election results should not be set
aside, as the Regional Director recommended.
In sustaining Petitioner's Objection 1, the Regional
Director stated that, although the Board has held
that the Excelsior rule need not be mechanically
applied, there are no cases where the Board has
found the employer to have substantially complied
with the Excelsior requirement when the untimely
filing was due solely to the employer's negligence and
no extenuating circumstances were demonstrated by
the employer. We disagree.
An analysis of the Board cases on the issue of
whether an employer has substantially complied with
the requirements of the Excelsior rule, despite an
untimely submission of the required list, demon-
strates that three factors are taken into consider-
ation: (I) the number of days which the list was
overdue; (2) the number of days which the union has
had the list prior to the election; and (3) the number
of employees eligible to vote in the election. 4 The
first factor obviously derives directly from the
Excelsior rule as literally stated, while the second and
third factors derive from the policy behind the rule-
to afford the union sufficient opportunity to commu-
nicate with employees prior to an election so that all
of the eligible voters will be exposed to the arguments
for, as well as against, union representation. Excelsi-
or, supra at 1241. 5
The Board has found that an employer substantial-
ly complies with the Excelsior rule, although failing
to submit the list in a timely fashion, in the following
situations. In Program Aids Company, Inc., 163
NLRB 145, 146 (1967), the Excelsior list was
submitted 4 days late, the union had the list 10 days
before the election, and the number of employees
eligible to vote totaled 50. And, in Taylor Publishing
Company, 167 NLRB 228 (1967), the Board received
the list I day late, the union received the list 9 days
I See, e.g., cases cited hereinafter.
. The Board has also taken into consideration on occasion certain
mitigating or aggravating circumstances in determining whether an
employer has substantially complied with the Excelsior rule despite an
untimely submission. See United States Consumer Products, 164 NLRB 1187
(1967) (list submitted late because the union retracted its informal
agreement with the employer that the former would withdraw its election
petition; election not set aside); Idaho Supreme Potatoes, Inc., 218 NLRB 38
(1975) (lack of good faith on the part of the employer in providing the union
with list; election set aside). See also The Coca.-Cola Company Foods
Division, 202 NLRB 910 (1973); Ben Pearson Plant, Consumer Division,
Brunswick Corporation, 206 NLRB 532 (1973); and Commercial Air
Conditioning Co., Inc., d/b/a Sprayking, Inc., 226 NLRB 1044 (1976), for
cases involving extenuating circumstances despite the absence of evidence
that the employer failed to submit the Ercelsior list in a timely fashion.
prior to the election, and the unit exceeded 1,000
employees. 6 On the other hand, in Rockwell Manu-
facturing Company, 201 NLRB 358 (1973), and
Chemical Technology, Inc., 214 NLRB 590 (1974), the
Board found that an employer did not substantially
comply with the Excelsior rule because it failed to file
the required list in a timely manner. In Rockwell, the
list was filed II days late with the Board, the union
received the list 23 days prior to the election, and the
employees eligible to vote numbered over 200. In
Chemical Technology, an initial Excelsior list (con-
taining numerous inaccuracies and omission of 10
eligible voters) was submitted 6 days late, the
supplemental list correcting the inaccuracies and
omissions was available to the union only 6 days
prior to the election, and the unit comprised about
120 employees.
In light of the foregoing recitation of the applicable
Board decisions, it is clear that the facts in the instant
case establish that the Employer has substantially
complied with the Excelsior requirement. 7 Here, the
14 days in which the Union had the list in its
possession prior to the election was ample time to
communicate with the relatively small number of
employees eligible to vote. Moreover, the late
submission (3 calendar days but merely a single
working day late) was not a substantial failure on the
Employer's part to comply with its obligation under
the Excelsior rule. Lastly, the results of the investiga-
tion did not present, nor is it even alleged, that the
late submission was due to a lack of good faith on the
part of the Employer to provide the Union with the
required information. In these circumstances, to set
aside the election results would be tantamount to a
mechanical application of the Excelsior rule, con-
trary to existing Board precedent.8
Accordingly, as we find no merit in Objection 1, we
shall issue the following Direction.9
DIRECTION
It is hereby directed that the Regional Director for
Region 3 shall, within 10 days from the date of this
Decision, open and count the ballot of Hiriam
Abare, prepare a revised tally of ballots, and, if the
6 See also The Singer Company, 175 NLRB 211, 212 (1969); Telonic
Instruments, a Division of Telonic Industries, Inc., 173 NLRB 588 ( 1968).
I In fact, the facts herein demonstrate a more compelling case than did
the facts in Program Aids Company, supra, in which the Board found
substantial compliance with the Excelsior rule. In this case, each of the three
factors considered by the Board constitutes less of a departure from the
employer's obligation and less of a prejudicial effect upon the union than
each of the factors in that earlier case.
. Program Aids Co., supra. See also Singer Co., supra, Taylor Publishing
Co., supra, United States Consumer Products, supra; Telonic Instruments, Div.
of Telonic Industries, supra, Rockwell Manufacturing Co., supra; and
Commercial Air Conditioning Co., supra.
9 In the absence of exceptions thereto, we adopt proforma the Regional
Director's recommendations with respect to the challenged ballot and
Objections 2 and 3.
197
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
revised tally reflects that the Petitioner has received
the majority of valid ballots cast, issue a Certification
of Representative. However, if the revised tally
reveals that the Petitioner has failed to receive a
majority of the valid votes cast, the Regional
Director shall issue a Certification of Results of
Election.
198