Ponce Television Corp.

National Labor Relations Board - Board Decisions

Jul 19, 1971

192 N.L.R.B. 115 (N.L.R.B. 1971)

PONCE TELEVISION CORPORATION 115
Ponce Television Corporation (WRIK-Tip-Channel 7)
and, Asociacion - Puertorriquena De Artistas Y
Tecnicos Del Espeetaculo, Inc.,, Petitioner. Case
24-RC-4165
July 19, 1971
DECISION, ORDER, AND DIRECTION
- OF SECOND ELECTION
BY^ CHAIRMAN .MILLER AND MEMBERS JENKINS
AND KENNEDY'
Pursuant to a Stipulation, for Certification Upon
Consent Election executed on October 5, 1970, an
election by secret ballot was conducted in the above-
entitled matter on November 13, 1970, under the
direction and supervision of the Regional Director for
Region 24, among the employees in the stipulated
unit. At the conclusion of the balloting, the parties
were furnished with a tally of ballots which showed
that of approximately 62 eligible voters, 17 cast
ballots for, and 42 against, the Petitioner, and there
were 10 challenged ballots.' The challenged ballots
were not sufficient in number to affect the results of
the election. Thereafter, on November 17, 1970, the
Petitioner filed timely objections to conduct affecting
the results of the election.'
In accordance with the National Labor Relations
Board Rules and Regulations, the Regional Director
conducted an investigation and, on-February 2, 1971,
issued and duly served on the parties his Report and
Recommendation on Objections, in which he found
the objections were without merit and recommended
that they be overruled. Thereafter, the Petitioner filed
timely exceptions to the Regional Director's report.
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. , ' ,
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 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
within the meaning of Section 9(c)(1) and Section 2(6)
and (7) of the Act.
4. As stipulated by the parties, the following
employees constitute a unit appropriate for the
purposes of collective bargaining within the meaning
of Section 9(b) of the At t:
All studio and transmitter technicians, mainte-
nance employees and actors and actresses em-
ployed by the Employer at its facilities in San Juan
and Ponce, P.R., including all announcers, narra-
tors, newscasters, graphic artists, scenery depart-
ment employees, stage hands, prop crews, musical
and sound effects technicians, make-up artists,
messengers, news film photographers and fihn
editors; but excluding all other employees, includ-
ing musicians, singers, dancers, office clerical
employees, guards and supervisors as defined in
the Act.
5. Petitioner's Objections 3 and 4 concern the
eligibility of five antenna installers and a group of
actors and actresses on the Rikalocuras program who
Petitioner contended were in the unit and who were
omitted from the eligibility list submitted by the
Employer on October 13, 1970. Relying on the
Petitioner's failure to protest the omission of the
antenna installers from the list prior to the election,
the Regional Director, without reaching the issue of
their eligibility, concluded that the Petitioner was
estopped from raising the issue after the election.
With respect to the actors and actresses, the Employer
omitted the names of approximately 25 entertainers
on the Rikalocuras program from the eligibility list, 14'
of whom it subsequently agreed were eligible voters.
The Regional Director found that a genuine dispute
existed between the parties about the eligibility-of
these employees and concluded that, in tight of this
dispute, mere exclusion of these employees from the
list did not constitute grounds for setting aside the
election. We do not agree.2
In essence, Petitioner's Objections 3 and 4 place the
issue of the Employer's substantial compliance with
our Excelsior rule before us for considerations The
facts in this case clearly reveal that when the
Employer omitted the names of 14 eligible actors and
actresses from the Excelsior list, it omitted 22 percent
of the electorate. If the antenna installers were also
eligible voters, this ratio would climb to a striking 3 0
percent. The only reason advanced for the Employer's
failure to supply a complete list of names with respect
to the actors and actresses is that the Employer
contested the eligiblity of certain employees on the
Rikalocuras program. However, there appears to be
no basis for the exclusion of all actors and actresses in
view of their specific inclusion in the unit agreed on
a It appears that the "approximate number of eligible voters" reflected and recommendations with respect to Petitioner's Objections' 2, 5, 6, 7, ani
on the tally of ballots is not accurate. It does not reflect the number of 8 and accordingly adopt them. Moreover, in the absence of exceptions, we
voters who cast ballots, nor does it appear to include the voters who were adopt, pro forma, the Regional Director's findings, conclusions, and
eligible to vote, but were omitted from the eligibility list. recommendations with respect to Petitioner's Objection 1.
2 We agree, however, with the Regional Director's findings, conclusions, 3 Excelsior Underwear Inc., 156 NLRB 1236.
192 NLRB No. 20
116 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
by the parties as appropriate in the Stipulation for
Certification Upon Consent Election agreement. In
Excelsior we stated that one purpose of the require-
ment that the employer submit a list containing the
names and addresses of all eligible employees was
that:
... bona fide disputes between [the) employer
and union over voting eligibility will be more
susceptible of settlement without recourse to the
formal and time-consuming challenge procedures
of the- Board if such disputes come to light early in
the election campaign, rather than in' the last few
days before the, election when the significance of a
single vote is apt to loom large in the parties'
calculations. Thus the requirement of prompt
disclosure of -employee names and addresses will
further the public interest in the speedy resolution
of questions of representation.4
It would appear that the instant case particularly
exemplifies that kind of situation contemplated by the
Board's Excelsior decision., Although it is not Board
policy to apply the .Excelsior rule mechanistically,5
neither is it our policy, to vest the Employer with
unlimited discretion with,respect to the content of the
eligibility list. The rule's value as a means of insuring a
fair ,and free election lies in its simplicity and ease of
administration, For this reason, we need look only to
whether or not, under the circumstances of 'a
particular, case, the Employer has substantially
complied with its Excelsior obligations.6 As we
recently noted, the rule imposes a simple duty on
4 Excelsior ^ Underwear Inc., 'supra at 1243;' see also Murphy Bonded
Warehouse, Inc., 180 NLRB No. 29; Rite-Care Poultry'Co., 1'85 NLRB No.
10.
b Telonic Instruments, a Division of Telonic Industries, Inc., 173 NLRB
588, Program Aids Company, Inc., 163 NLRB 145.
e Pacific Gamble Robinson Co /Omaha Branch d/bla Gamble Robinson
Cs., 180 NLRB No. 84.
1 5'onfarrel, Inc., 188 NLRB No. 146,
s see Are Letter Service Co., 187 NLRB No. 79.
® Like the Regional Director, we do not reach the issue of the eligiblity
of the antenna installers . We note, however, our disagreement with his
rationale that the Petitioner's failure to raise the issue ,,prior to the election
operates as an estoppel on the Petitioner's right to raise the issue' in
subsequent objections to the election . Cf. Time-World Corp., 151 NLRB
947; Norris•Ther anador Corp„ 118 NLRB 1341.
employers which can be satisfied by the application of
a reasonable amount of diligence.' 'We do not -find
that the Employer, here exercised ` such diligence.
Rather, it appears that the Employer has willfully
refused to meet its Excelsior duty in order to support
its position with regard to the actors and actresses on
the Rikalocuras program. If the -Employer wished to
contest the eligibility of these employees it could have
indicated its intention to challenge them when they
appeared to cast ballots at the polls . Here, however,
the Employer in effect arrogated to itself the Board's
powers with regard to 'eligibility determinations in
representation proceedings. Such usurpation of the
Board's authority to make these determinations
interferes with our orderly election processes.8 Under
all the circumstances present herein, and in view of
the omission of approximately 22 , percent - of the
electorate from the eligibility list, we ' find that, the
Employer has failed to- substantially comply with our
Excelsior requirements.9 Accordingly,,, we shall sus-
tain Petitioner's Objections, 3 and 4-and set aside the
election and direct a new election.
ORDER
It is hereby ordered that the election- of November
13, 1970, among the unit of employees , hereinbefore
set out, be, and it hereby is, setaside.
[Direction of Second Election 10 omitted from
publication ]
10 In ' order to assure that all eligible voters may have the opportunity to be
informed of the issues' m the exercise of their statutory right to vote, all
parties to the election should have access to a list of voters, and their
addresses which may be used to communicate with them . Excelsior
Underwear Inc., 156 NLRB 1236; N.LR.B. v. Wyman-Gordon Co., 394`U.S.
759. Accordingly, it is hereby directed that 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 24 within 7 days
after the date of issuance of the Notice of Second Election by the Regional
Director . 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.