Taylor Publishing Co.

National Labor Relations Board - Board Decisions

Aug 28, 1967

167 N.L.R.B. 228 (N.L.R.B. 1967)

228 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Taylor Publishing Company and Local 267, Lithog-
raphers & Photoengravers International Union,
AFL-CIO, and Local No. 67, International
Brotherhood of Bookbinders , AFL-CIO, Joint
Petitioners . Case 16-RC-4526
August 28, 1967
DECISION AND CERTIFICATION OF
RESULTS OF ELECTION
BY CHAIRMAN MCCULLOCH AND MEMBERS
FANNING AND BROWN
Pursuant to a stipulation for certification upon
consent election, an election by secret ballot was
conducted on March 16, 1967, under the direction
and supervision of the Regional Director for Region
16, 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 1,127 eligible voters, 985 bal-
lots were cast, of which 456 were for, and 490,
against, the Petitioners, 38 ballots were challenged,
and 1 was ruled void. The challenged ballots were
sufficient in number to affect the results of the elec-
tion. On March 22, 1967, the Petitioners filed time-
ly objections to conduct affecting the results of the
election.
In accordance with National Labor Relations
Board's Rules and Regulations, Series 8, as
amended, the Acting Regional Director conducted
an investigation and, on June 8, 1967, issued and
duly served upon the parties his report on chal-
lenged ballots and objections to election, recom-
mending that the Petitioners' objection 2 be over-
ruled, that objection 1 be sustained, and therefore
that the election be set aside.' The Acting Regional
Director further recommended that the Board
sustain 21 of the 38 challenges. Thereafter, on June
30, 1967, the Employer filed timely exceptions to
the report insofar as it recommended that the elec-
tion be set aside on the basis of objection 1 and that
21 of the challenges be sustained.
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 Joint Petitioners are labor organizations
claiming to represent certain employees of the Em-
ployer.
3. A question affecting commerce exists con-
cerning the representation of employees of the Em-
ployer within the meaning of Section 9(c)(1) and
Section 2(6) and (7) of the Act.
4. In accordance with the stipulation of the
parties, we find that the following employees of the
Employer constitute a unit appropriate for the pur-
poses of collective bargaining within the meaning of
Section 9(b) of the Act:
All production and maintenance employees em-
ployed by Taylor Publishing Company at its plant
located at 1550 W. Mockingbird Lane, Dallas, Tex-
as; excluding all other employees, including office
clerical, professional employees, guards,
watchmen, and supervisors as defined in the Act, as
amended.
5. The Board has considered the Acting Re-
gional Director's report, the Employer's excep-
tions, and the entire record in the case, and finds as
follows:2
The Petitioners argue in their objection 1 that the
election should be set aside under the Excelsior
rule3 because the Employer failed to furnish the list
of the names and addresses of its employees within
7 days after the Regional Director's approval of the
stipulation for consent election agreement. While
the Employer does not deny that the list was filed
on March 7, 1967, 1 day after the prescribed filing
time and 9 days before the scheduled election, it
contends that its failure to comply with the
Excelsior rule was inadvertent and points out that
it made a timely and reasonable effort to cure the ef-
fect of the oversight by requesting that the election
date be reset in order to permit the Petitioners
longer access to the payroll list and addresses. Ac-
cordingly, the Employer argues that its conduct was
in substantial compliance with the Excelsior rule so
as not to warrant the setting aside of the election.
While recognizing that the Excelsior rule need
not be mechanically applied,' the Acting Regional
Director concluded, in view of the large size of the
unit here involved, that the Petitioners' possession
of the Excelsior list for a period of only 9 days prior
to the election did not afford the Petitioners suffi-
cient opportunity to communicate with employees
prior to the election. In the particular circumstances
of this case, we disagree. The Employer filed the
Excelsior list only 1 day late, and the list was avail-
able to Petitioners for a 9-day period prior to the
election, rather than for the 10-day period that strict
adherence to the Excelsior rule would have provi-
I The Petitioner, by telegram dated May 19, 1967, requested
withdrawal of all objections other than I and 2, and the Acting Regional
Director approved the withdrawal request on May 31, 1967
x No exception having been taken thereto, we adopt the Acting Re-
gional Director ' s recommendations that 17 challenges and Petitioners' ob-
jection No 2 be overruled
' Excelsior Underwear Inc, 156 N LRB 1236
4 See Program Aids Company, Inc, 163 N LRB 145
167 NLRB No. 50
TAYLOR PUBLISHING CO. 229
ded.5 Moreover, its effort to obtain a delay which,
merely by a 1-day postponement in the election,
could have cured the effect of any noncompliance
plainly confirms its intention to make the list avail-
able to the Unions for the full period prescribed by
the rule. In these circumstances, we are unwilling,
absent an affirmative showing to the contrary, to
find that the Petitioners were not afforded sufficient
opportunity to communicate with employees prior
to the election, and we therefore conclude that the
Employer substantially complied with the require-
ments of the Excelsior rule. Accordingly, we shall
overrule the Petitioners' objection 1.
As indicated, the tally of ballots shows that 456
votes were cast for the Petitioners, that 490 were
cast against them, and that 38 were challenged. The
Regional Director sustained 21 of the challenges
and overruled the remaining 17. The Employer has
filed exceptions with respect to the 21 sustained
challenges. We have considered these exceptions
and find that with respect to the challenged ballots
of Bob Kirkpatrick, Nancy M. Jones, Sharon
Briggs, Ann Mihal, and Carol Webster, all of which
were sustained by the Acting Regional Director,
the Employer's exceptions raise no material or sub-
stantial issue of fact or law which would warrant
reversal of the Acting Regional Director's findings
and recommendations. All five of the individuals
named were found by the Acting Regional Director
to have- had no employment status during the
prescribed eligibility period. As the Acting Re-
gional Director applied the proper test in sustaining
the challenges to their ballots and as the Employer
has failed to allege facts contradicting those found
by the Acting Regional Director, there appears to
be no basis for the hearing requested by the Em-
ployer. Since the remaining 16 challenges sustained
by the Acting Regional Director, even if combined
with the 17 overruled, are insufficient in number to,
affect the results of the election, we find it unneces-
sary to pass upon the Acting Regional Director's
rulings and the Employer's exceptions with respect
to them.
As the tally of ballots shows that the Unions have
not received a majority of the valid votes cast in the
election, and as the challenged ballots that we have
not passed upon are insufficient in number to affect
the results of the election, we shall certify the
results of the election.
CERTIFICATION OF RESULT$ OF
ELECTION
IT IS HEREBY CERTIFIED that a majority of the
valid votes have not been cast for Local 267,
Lithographers & Photoengravers International
Union, AFL-CIO, and Local No. 67, International
Brotherhood of Bookbinders , AFL-CIO, Joint
Petitioners , in the election held herein , and that said
Unions do not constitute the exclusive representa-
tive of the employees in the unit found appropriate
within the meaning of Section 9(a) of the National
Labor Relations Act, as amended.
' As the Regional Director had scheduled the election for March 16
and had directed submission of the Excelsior list by March 6, if the Em-
ployer had furnished the list on that date, it would have been available to
the Unions for 10 days at most.