Program Aids Co., Inc.,

National Labor Relations Board - Board Decisions

Feb 24, 1967

163 N.L.R.B. 145 (N.L.R.B. 1967)

PROGRAM AIDS COMPANY
articulated reasons for the decisions in and
distinctions among the cases" involving unit
determinations in the insurance industry.
Thereafter, the Board, on February 11, 1966, issued
a Supplemental Decision and Order in the
Metropolitan case,4 explicating the rationale
underlying its original unit determination as well as
its general policy for determining appropriate
bargaining units in the insurance industry.
On April 19, 1965, the United States Court of
Appeals for the Fourth Circuit entered an order
remanding the instant case to the Board for further
proceedings consistent with the Supreme Court's
opinion in the Metropolitan case, supra. On
September 14, 1966, the Board issued an order
granting leave to the parties to file briefs directed to
the unit finding, which the Board had decided to
reconsider. Thereafter, Respondent filed a brief
which has been duly considered by the Board.
Pursuant to the provisions of Section 3(b) of the
Act, the Board has delegated its powers in
connection with this case to a three-member panel.
Respondent argues that the Board's unit
determination in this case and the underlying
representation proceeding were controlled by the
extent of the Union's organization and that,
therefore, the unit is invalid under Section 9(c)(5) of
the Act. In light of Respondent's argument, we have
reexamined the original unit determination made by
the Board's Regional Director and the entire record
in this case and the representation proceeding in
Case 5-RC-3974, and for the reasons heretofore set
forth in the Board's Supplemental Decision and
Order in Western & Southern Life Insurance
Company, 163 NLRB 138, and in Metropolitan Life
Insurance Company (Woonsocket, R.I.), 156 NLRB
1408, we find no merit in this argument.
Accordingly, we reaffirm our earlier unit finding and
the Decision and Order heretofore issued in this
case.
' Metropolitan l.i/ie Insurance Company (Woonsocket, R.I.), 156
NLRB 1408.
Program Aids Company, Inc., Employer-
Petitioner and Toy and Novelty Workers of
America , Local 223, Affl . with International
Union of Dolls, Toys, Playthings , Novelties
and Allied Products of U.S. and Canada,
AFL-CIO. Case 2-RM-1495.
February 24, 1967
DECISION AND CERTIFICATION OF RESULTS
OF ELECTION
BY MEMBERS FANNING, J ENKINS, AND ZAGORIA
Pursuant to a stipulation for certification upon
consent election , an election by secret ballot was
163 NLRB No. 54
145
conducted on September 21, 1966, under the
direction and supervision of the Regional Director
for Region 2, among the employees in the unit
described below. At the conclusion of the election,
the parties were furnished with a tally of ballots
which showed that of approximately 50 eligible
voters, 50 ballots were cast, of which 4 were for, and
41 against, the Union, with 3 challenged and 2 void
ballots. The challenged ballots were not sufficient in
number to affect the results of the election.
Thereafter, the Union filed timely objections to
conduct affecting the results of the election.
On November 22, 1966, the Regional Director
issued and duly served on the parties his report on
objections, recommending that the Union's
Objection 1 be sustained and that the Board set
aside the election. Thereafter, on December 15,
1966, the Employer-Petitioner filed timely
exceptions to the report, insofar as it recommended
that the election be set aside on the basis of
Objection 1, and a supporting brief.
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-Petitioner is engaged in
commerce within the meaning of the National Labor
Relations Act, as amended, and it will effectuate the
purposes of the Act to assert jurisdiction herein.
2. The Union is a labor organization claiming to
represent certain employees of the Employer.
3. A question affecting commerce exists
concerning the representation of certain employees
of the Employer-Petitioner within the meaning of
Section 9(c)(1) and Section 2(6) and (7) of the Act.
4. The parties stipulated, and we find, that the
following employees of the Employer-Petitioner
constitute a unit appropriate for the purposes of
collective bargaining within the meaning of
Section 9(b) of the Act:
All production and maintenance employees
employed at 1696 Boone Avenue, Bronx, New
York, and 550 Garden Avenue, Mount Vernon,
New York, excluding all office employees,
guards, watchmen, and supervisors as defined
in the Act.
5. The Board has considered the objection, the
Regional Director's report, and the Employer-
Petitioner's exceptions and brief and hereby adopts
the Regional Director's report as modified herein.'
The Union argues in its Objection 1 that the
election should be set aside under the Excelsior
rule,2 because the Employer-Petitioner failed to
furnish the list of the names and addresses of its
' In the absence of exception, we adopt pro forma the Regional
Director's recommendation that the Union's second, third, and
fourth object.ons be overruled.
2 Excelsior Underwear Inc., 156 NLRB 1236.
146 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employees within 7 days after the Regional
Director's approval of the stipulation for consent
election agreement. While the Employer-Petitioner
does not deny that the list was filed on
September 11, 1966, 4 days after the prescribed
filing time, it contends first that the parties, with the
approval of the Board agent, agreed that the list
would be filed on September 11 at a preelection
conference, and, secondly, that even if the
agreement were not effective, its substantial
compliance with Excelsior rule is sufficient so as not
to warrant the setting aside of the election.
Like the Regional Director, we find it unnecessary
to determine whether the parties reached an
agreement providing for a later filing date. However,
unlike the Regional Director, we find nothing in our
Decision in Excelsior which would require the rule
stated therein to be mechanically applied. The
principle underlying rationale of Excelsior, requiring
the employer to disclose the names and addresses of
eligible voters to the union, is to provide the union
with an opportunity to inform the employees of its
position so that they, the employees, will be able to
vote intelligently. Here, the unit is relatively small;
the list was submitted 4 days late; and the Union had
the list in its possession for a period of 10 days prior
to the election. In these circumstances, we find that
the Union was afforded sufficient opportunity to
communicate with employees prior to the election
and therefore that the Employer-Petitioner has
substantially complied with the requirements of the
Excelsior rule. We shall therefore overrule the
Union's Objection 1.
As the tally of ballots shows that the Union has not
received a majority of the valid votes cast in the
election, and as the challenged ballots are
insufficient in number to affect the results of the
election, we shall certify the results of the election.
CERTIFICATION OF RESULTS OF ELECTION
IT Is HEREBY CERTIFIED that a majority of the
valid votes have not been cast for Toy and Novelty
Workers of America, Local 223, Affiliated with
International Union of Dolls, Toys, Playthings,
Novelties and Allied Products of U.S. and Canada,
AFL-CIO, in the election held herein, and that said
Union is not the exclusive representative of the
employees in the unit found appropriate within the
meaning of Section 9(a) of the National Labor
Relations Act, as amended.
Decorel Corporation : Reliance-Illinois
Corporation ; and Ridgecraft Corporation
and Upholsterers International Union,
AFL-CIO,-Acting through its Agent
Picture Frame Workers, Molding Workers
& Furniture Handlers, Local 18-H. Case
13-CA-7047.
February 27,1967
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS JENKINS
AND ZAGORIA
On July 5, 1966, Trial Examiner George A.
Downing issued his Decision in the above-entitled
proceeding, finding that Respondents had engaged
in certain unfair labor practices and recommending
that they cease and desist therefrom and take
certain affirmative action, as set forth in the
attached Trial Examiner's Decision. Thereafter,
Respondents filed exceptions to the Trial
Examiner's Decision and supporting briefs, and the
General Counsel filed cross-exceptions and
supporting brief.
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 reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions, the briefs, and
the entire record in the case, and hereby adopts the
findings, conclusions, and recommendations of the
Trial Examiner with the following additions and,
modifications. I
We agree with the Trial Examiner's findings that
Respondents violated Section 8(a)(5) and (1) of the
Act. However, in adopting the Trial Examiner's
finding of an 8(a)(5) violation we rely on the following
rationale.
For many years Respondents and the Union have
Respondents have excepted to the Trial Examiner's
statement that they did not file a bnef with him. Apparently as a
result of misunderstanding , Respondents filed the brief intended
for the Tnal Examiner with the Regional Director who did not
forward it to the Trial Examiner Section 102 42 of the Board
Rules and Regulations places on the party desiring to file a brief
the responsibility for filing with the Trial Examiner, with copies
served on the other parties . Respondents have attached to their
bnef to the Board copies of the brief intended for the Trial
Examiner. We have considered both briefs.
163 NLRB No. 11