The Coca-Cola Co.

National Labor Relations Board - Board Decisions

Apr 5, 1973

202 N.L.R.B. 910 (N.L.R.B. 1973)

910 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Coca-Cola Company Foods Division and Citrus,
Cannery, Food Processing and Allied Workers,
Drivers, Warehousemen and Helpers Local 444,
affiliated with International Brotherhood of Team-
sters , Chauffeurs , Warehousemen and Helpers of
America, Petitioner . Case 12-RC-4215
April 5, 1973
DECISION, ORDER, AND DIRECTION
OF SECOND ELECTION
BY MEMBERS FANNING, JENKINS, AND
KENNEDY
Pursuant to a Stipulation for Certification Upon
Consent Election approved by the Acting Regional
Director for Region 12 on October 18, 1972, an
election by secret ballot was conducted on Novem-
ber 9, 1972, under the Regional Director's direction
and supervision, among the employees of the
stipulated appropriate unit. Upon conclusion of the
election, the parties were furnished with a tally of
ballots which showed that, of approximately 35
eligible voters, 34 cast valid ballots, of which 2 were
for, and 32 against, Petitioner. There were challenged
ballots. Thereafter, on November 16, 1972, the
Petitioner filed timely objections to conduct affecting
the results of the election.' A copy of the objections
was duly served on the Employer.
In accordance with Section 102.69 of the National
Labor Relations Board Rules and Regulations, Series
8, as amended, the Regional Director conducted an
investigation and, on December 18, 1972, issued and
served on the parties his Report on Objections, in
which he recommended that the objections be
dismissed. Thereafter, Petitioner filed exceptions and
a supporting brief to the Regional Director's report,
limited solely to his recommendation to overrule
Petitioner's Objection 1.2
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.
3. A question affecting commerce exists concern-
I Although the Employer claimed it had not received the objections
the Regional Director found that the delay was not attributable to
Petitioner and that the Employer had not been prejudiced because of the
delay In the absence of any exceptions thereto, we shall adopt pro forma
the finding of the Regional Director concerning the timeliness of the
receipt by the Employer of Petitioner's objections
Ing the representation of certain employees of the
Employer within the meaning of Section 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 Auburndale
Freezer Corporation plant, Auburndale, Florida,
excluding office clerical employees, professional
employees, guards and supervisors as defined in
the Act.
The Board has reviewed the entire record in this
case, including the Regional Director's Report on
Objections and Recommendations, the exceptions,
and the brief and hereby adopts the Regional
Director's report only to the extent consistent
herewith.
The only issue before us is Petitioner's Objection 1
alleging that Petitioner was denied full opportunity
to communicate with employees by not being
furnished or given access to a list of voters and their
addresses, as required by our Decision in Excelsior
Underwear, Inc., 156 NLRB 1236, in time for
utilization of such list inasmuch as such list was not
furnished to Petitioner until November 6,3 and the
election was conducted on November 9. The critical
facts in this case are not in dispute. In compliance
with the Board requirements, the Employer submit-
ted the required list to the Regional Office where it
was received on October 24, and mailed by certified
mail on the same date. However, the Regional
Office's letter was misaddressed to Local 333,
although correctly addressed to Petitioner's post
office box number at Auburndale, Florida. The
postal service at Auburndale received the letter on
October 25. It, however, refused to turn the letter
over to Petitioner.' The Petitioner on November 3
informed the Regional Office that it had not received
the required list and was then furnished a copy of the
list by the Regional Office on November 6. The
Petitioner argues that its failure to receive the
misdirected letter and having received the list "only
hours before the election" inhibited and restricted
Petitioner in carrying its message and responses to
the Employer's literature to the employees in a timely
manner. We agree.
As the Board said in Rockwell Manufacturing
Company, 201 NLRB No. 57:
2 Since no exceptions were filed to the Regional Director's recommenda-
tion to overrule the Petitioner 's Objections 2 and 3 we shall adopt his
recommendation pro foram
d All dates hereinafter are 1972 , unless indicated otherwise
' The postal service returned, as undelivered , the certified letter
addressed to Local 333 to the Regional Office on November 13
202 NLRB No. 123
COCA-COLA CO FOODS DIVISION 911
Were we to permit substantial deviation from our
Excelsior doctrine, it soon would become a
requirement more honored in the breach than in
observance.
We have in numerous cases held employers to strict
compliance with the requirements of the rule in the
absence of any extenuating circumstances of sub-
stance. While in this case the failure of the Petitioner
to receive the list was due to a misaddressed letter on
our part, we can only conclude that the Petitioner
was prejudiced thereby. We therefore find merit in
Objection I, and we shall set the election aside.
ORDER
It is hereby ordered that the election conducted
November 9, 1972, be, and it hereby is, set aside.
[Direction of Second Election and Excelsior foot-
note omitted from publication.]