Sonfarrel, Inc.

National Labor Relations Board - Board Decisions

Mar 15, 1971

188 N.L.R.B. 969 (N.L.R.B. 1971)

SONFARREL, INC.
Sonfarrel, Inc., and Miscellaneous Warehousemen,
Drivers & Helpers Local 986, International Brother-
hood of Teamsters , Chauffeurs, Warehousemen &
Helpers of America , Petitioner. Case 21-RC-11835
March 15, 1971
DECISION, ORDER, AND DIRECTION OF
SECOND ELECTION
BY CHAIRMAN MILLER AND MEMBERS FANNING AND
JENKINS
Pursuant to a Stipulation for Certification Upon
Consent Election executed on July 7, 1970, an election
by secret ballot was conducted on July 24, 1970, under
the direction and supervision of the Regional Director
for Region 21, among the employees in the stipulated
unit. At the conclusion of the election, the parties
were furnished with a tally of ballots, which showed
that 11 voters cast ballots for, and 20 against, the
Petitioner, and there were 21 challenged ballots. The
challenged ballots were sufficient in number to affect
the results of the election. Thereafter, the Petitioner
filed timely objections to conduct affecting the results
of the election.
In accordance with the National Labor Relations
Board Rules and Regulations and Statements of Pro-
cedure, Series 8, as amended, the Regional Director
conducted an investigation and, on September 15,
1970, issued and duly served upon the parties his re-
port on objections and challenged ballots, in which he
recommended, in relevant part, that the challenges to
the ballots of employees Judson Rexrode, Pearl Wel-
cher, Jessie McCarty, David Trubey, Carol Hansen,
Jane Fallon, Robert Lunsford, Frank Hansen, Joey
Hansen, Lillian Etheridge, Bryson Bunch, Laura Gal-
loway, and Marielle Laquerre be overruled; that the
challenges to the ballots of Jason Dewhirst, Elizabeth
Dubry, Arlene Dubry, Michael Fedorra, Albert
Lentz, and Richard Allstead be sustained; and that
the ballots of the above-listed 13 employees whom the
Regional Director would find eligible to vote be
opened and counted, and a revised tally of ballots be
issued to the parties. In the event that the revised tally
showed that the challenged ballots of Steve Randolph
and Robert Stover were sufficient in number to affect
the results, the Regional Director further recommend-
ed that a hearing be held on their challenged ballots.
The Regional Director also recommended that the
Petitioner's objections to the election be sustained
and that, in the event the final revised tally of ballots
showed that the Petitioner did not receive a majority
of the valid ballots cast in the election, the election be
set aside and a second election directed. Thereafter,
the Employer filed timely exceptions to the portion of
969
the Regional Director's report dealing with the
Petitioner's objections.'
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 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 concerning
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. We find, in accord with the stipulation of the
parties, that the following unit is appropriate for the
purposes of collective bargaining within the meaning
of Section 9(b) of the Act:
All production and maintenance employees,
shipping and receiving employees , warehouse-
men and truck drivers ; excluding all other em-
ployees , office clerical employees , professional
employees , guards and supervisors as defined in
the Act.
5. The Board has considered the Petitioner's objec-
tions , the Regional Director's report, and the
Employer's exceptions and brief, and hereby adopts
the Regional Director's findings and recommenda-
tions.
We agree with the Regional Director that the
Employer's omission of the names of five eligible em-
ployees from the preelection eligibility list consti-
tuted , in the circumstances of this case , a failure to
comply substantially with the requirement of Excel-
sior Underwear Inc., 156 NLRB 1236, and warrants
the holding of a new election Pacific Gamble Robinson
Co., Omaha Branch d/b/a Gamble Robinson Co., 180
NLRB No. 84.
Subsequent to the issuance of the Regional
Director's report , the Employer secured , and has at-
tached to its exceptions submitted to the Board, writ-
ten statements from four of the five employees whose
names were omitted from the list . All of the state-
ments recite that the signatory employees had re-
1 Neither party has excepted to the Regional Director's recommendations
as to the disposition of the challenged ballots, and we adopt those recommen-
dations pro forma. On December 29, 1970, subsequent to the receipt of the
Employer's exceptions , the Board instructed the Acting Regional Director
for Region 21, by telegraphic order, to open and count the ballots cast by
the 13 aforenamed employees whom the Regional Director had found to be
eligible to vote On January 7, 1971, the Acting Regional Director issued a
revised tally of ballots, which shows that of the 52 ballots cast in the election,
15 were for the Petitioner, 29 were against, 6 were cast by ineligible voters,
and 2 challenged ballots remain unresolved. The unresolved challenged bal-
lots are , accordingly, insufficient to affect the results of the election.
188 NLRB No. 146
970 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ceived and read literature handed out by the Union,
had discussed the forthcoming election with fellow
employees, and were fully aware of the "meaning for
and the purpose of" the election; two of the state-
ments additionally attest that the signers had received
mailings from the Union. The Employer argues that
this evidence establishes that the Union was not mate-
rially prejudiced by the inadvertent omission of the
names of these employees from the Excelsior list,
since no substantial portion of the electorate in fact
could be said to have remained uninformed of the
Union's program and promises despite the omission
of the names from the list.
Although the Employer does not expressly request
a hearing on this issue, such a request is surely implicit
in its submission, since it is patent that we would not
make a finding that the employees were fully in-
formed of the election issues solely on the basis of the
unworn statements before us. Assuming, then, that
the Employer seeks to litigate the question raised by
it, we have concluded that the issues of a union's
actual access to employees, or the extent to which
employees omitted from the Excelsior list are aware of
the election issues and arguments , are not litigable
matters in applying the Excelsior rule.
As the Employer points out, our adoption of the
Excelsior requirement was rooted in the hope of insur-
ing a "fair and informed" electorate. An employer's
submission to the petitioning union of a list of names
and addresses of all eligible employees was deemed to
be a proper administrative mechanism to achieve that
end. To look beyond the question of the substantial
completeness of the lists, however, and into the fur-
ther question of whether employees were actually "in-
formed" about the election issues despite their
omission from the list, would spawn an administrative
monstrosity. The Excelsior rule imposes a simple duty
upon employers which can be satisfied by the applica-
tion of a reasonable amount of diligence. We perceive
no sound basis for granting the opportunity of pro-
longed litigation to an employer whose more attentive
concern with the rule would have obviated the need
for any such litigation in the first place. We shall
therefore presume, as the Excelsior case intended, that
the Employer's failure to supply a substantially com-
plete eligibility list had a prejudicial effect upon the
election, without inquiry into the question of whether
the Union might have obtained some additional
names and addresses of eligible employees prior to the
election or whether the omitted employees might have
garnered sufficient information about the issues to
have made an intelligent choice. Accordingly, we find
that the Employer's exceptions raise no material or
substantial issue of fact or law which would warrant
reversal of, or a hearing on, the Regional Director's
findings on the objections, which we hereby adopt.
Since the revised tally issued by the Acting Region-
al Director shows that the Petitioner has not received
a majority of the ballots cast and that the remaining
unresolved ballots cannot be determinative, see foot-
note 1, supra, the election will be set aside and a
second election directed.
ORDER
It is hereby ordered that the election of July 24,
1970, among the unit of employees hereinbefore set
out, be, and it hereby is, set aside.
[Direction of Second Election omitted from pub-
lication.]
2 In order to assure that all eligible voters may have the opportunity to be
informed of the issues in 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 L R 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 21 within 7 days after the date of issuance of
the Notice of Second Election by the Regional Director . The Regional Direc-
tor 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