Montgomery Ward & Co., Inc.

1188 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Montgomery Ward & Co., Incorporated and Warehousemen's. Union, Local 853, International Brotherhood of Teamsters,. Chauffeurs, Warehousemen and Helpers of America, Petitioner,- and Retail Clerks Union, Local 870, Retail Clerks International Association, AFL-CIO, Intervenor. Case 20-RC-6898. Sep- tember 16, 1966 DECISION, ORDER, AND DIRECTION OF SECOND ELECTION Pursuant to a stipulation for certification upon consent election executed on May 2, 1966, an election by secret ballot was conducted on May 20, 1966, under the direction and supervision of the Regional Director for Region 20, 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, of approximately 145 eligible vot- ers, 116 cast ballots, of which 29 were for the Petitioner, 4 were for the Intervenor, 82 were cast against the participating labor organiza- tions, and 1 ballot was challenged. Thereafter, the Petitioner and the Intervenor 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 June 14, 1966, issued and duly served upon the parties his Report on Objections, in which he recommended that the election be set aside and a new election directed. Thereafter, the Employer and the Intervenor 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 connetcion with this case to a three-member panel [Chairman McCulloch and Members Brown and Zagoria]. 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 purpose of the Act to assert jurisdiction herein. 2. The Petitioner and the Intervenor are labor organizations claim- ing to represent certain employees of the Employer. 3. A question affecting commerce exists concerning the representa- tion of the employees of the Employer within the meaning of Sections 9(c) (1) and 2(6) and (7) of the Act. 1 The stipulation was entered into by the Employer and the Petitioner on April 19, 1966, and was approved by the Regional Director on April 21 . The Intervenor signed the agree- ment on April 29, but reserved its right to protest the unit determination . Thereafter, on May 11, the Intervenor requested the Board to disapprove the stipulation and exclude certain employees. The Board denied the request on May 18, without prejudice to the Intervenor's right to challenge the ballots of the employees in question or to renew its, position in any objections it might file . The election was held on May 20, 1966. 160 NLRB No. 88. MONTGOMERY WARD & CO., INC. 1189 4. We find, in accord with the agreement of the parties,2 that the -following employees at the Employer's Fremont, California, store, constitute a unit appropriate for the purpose of collective bargaining --within the meaning of Section 9 (b) of the Act: All plus service clerks, payroll clerks, PBX clerks, unit stock control employees, receiving and shipping employees, mainte- nance employees , alteration employees, sales audit employees, auto service employees, buffeteria employees, cash office employees, credit employees, customer service clerks, display employees, invoice records employees, and all other nonselling employees, but excluding all selling employees , office clerical employees, all other employees, guards, and supervisors as defined in the Act. 5. The Regional Director recommended, in accord with the Peti- tioner's objection 1 and the Intervenor 's objection 2, that the Board set aside the election and direct a new election on the basis of the Employer's refusal to submit a list of names and addresses of the employees in the unit, as required by Excelsior Underwear, Inc.' He further recommended that the Board overrule the Intervenor 's objec- tions 1 and 4 relating to the composition of the unit, and stated that he found it unnecessary to rule on the Petitioner's objection 2 and the Intervenor's objection 3 relating to wage increases prior to the •election. We find no merit in the Employer's contention that the Excelsior rule is unconstitutional, or that, in any event, it should not be applied herein because of a notice posted by the Employer informing the employees of its reasons for refusing to comply with the requirement, and furnishing the addresses of the two unions so that employees who wished to do so could communicate with them.4 Also we find without merit the Intervenor's exceptions to the Regional Director's rulings on its objections , numbers 1 and 4. Accordingly, we find that the excep- tions of the Employer and the Intervenor raise no substantial issues which would warrant reversal of the Regional Director's findings and recommendations, which we hereby adopt. [The Board set aside the election.] [Text of Direction of Second Election omitted from publication.] ' 2 See footnote 1, supra. 8156 NLRB 1236. ' See Excelsior Underwear, Inc., supra; Crane Packing Co., 160 NLRB No. 15. 5 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 20 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 exten- sion of time to file this list shall be granted by the Regional Director except in extraor- dinary circumstances Failure to comply with this requirement shall be grounds for setting aside the election whenever proper objections are filed. Excelsior Underwear, Inc., supra,