Overland Hauling, Inc.

870 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Overland Hauling, Inc., Employer-Petitioner and Teamsters, Chauffeurs, Warehousemen & Helpers Local Union No. 385, affiliated with the Interna- tional Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Peti- tioner. Cases 12-RM-153 and 12-RC-2872 December 13, 1967 DECISION, ORDER, AND DIRECTION OF SECOND ELECTION BY MEMBERS BROWN, JENKINS, AND ZAGORIA Pursuant to a Stipulation for Certification upon Consent Election executed by the parties and ap- proved by the Regional Director on August 23, 1967, an election by secret ballot was conducted on September 1, 1967, under the direction and super- vision of the Regional Director for Region 12, 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 36 eligible voters, 28 cast valid ballots, of which 7 were for, and 21 were against, the Petitioner, and 8 were challenged. The chal- lenged ballots were not sufficient in number to af- fect the results of the election. Thereafter, the Peti- tioner filed timely objections to conduct affecting the results of the election. In accordance with the National Labor Relations Board Rules and Regulations, Series 8, as amended, the Regional Director conducted an investigation and, on October 5, 1967, issued and duly served upon the parties his Report on Objections in which he recommended that objections 1, 2, 3, and 4 be overruled in their entirety, that the withdrawal of objections 6 and 7 be approved, that objection 5 be sustained; that the election be set aside, and that a second election be directed. Thereafter, the Em- ployer 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 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 pur- poses 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 con- cerning the representation of the employees of the Employer 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 constitute a unit appropriate for the purpose of collective bargaining within the meaning of Section 9(b) of the Act: All employees of Overland Hauling, Inc., at its Ocoee, Florida, facility excluding office cleri- cal employees, salesmen, guards and super- visors as defined in the Act. 5. The Board has considered the Regional Director's Report and the Employer's exceptions thereto, and hereby adopts the Regional Director's findings and recommendations,' with the following observations. In adopting the Regional Director's recommen- dation concerning Petitioner's objection 5, we note that this objection relates to the manner of posting the official Notice of Election furnished by the Re- gional Director. Although posted by the Employer in the drivers' ready room and Employer's shop area, this was done in such a way that the section of the Notice entitled "Rights of Employees" was turned underneath the remaining portion of the Notice and, therefore, was not visible to the em- ployees eligible to vote. The Board recently revised the official Notice of Election form to include the expanded "Rights of Employees" section. As ap- pears from the official notice form itself, this revi- sion was adopted for the purpose of alerting em- ployees to their rights under the Act and in order to warn unions and management alike against conduct impeding fair and free elections. The manner in which the Employer posted the Notice herein was a patent attempt to minimize the effect of the Board's Notice. The Employer thereby denied the employees access to information deemed necessary to the conduct of an election and thus interfered with the laboratory conditions essential for a free expression of preference by the voters. Ac- cordingly, we find that the Employer, by its con- duct, prevented a fair and free election, and we shall set the election aside and direct a second election. ORDER It is hereby ordered that the election conducted on September 1, 1967, be, and it hereby is, set aside. [Direction of Second Election2 omitted from publication.] I to the absence of exceptions thereto, we adopt pro forma the Regional Director's recommendations that Petitioner's objections 1, 2, 3, and 4, be overruled. We note that objections 6 and 7 were withdrawn by the Peti- tioner. 2 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 12 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 ex- tension of time to file this list shall be granted by the Regional Director ex- cept in extraordinary circumstances. Failure to comply with this require- ment shall be grounds for setting aside the election whenever proper ob- jections are filed. Excelsior Underwear Inc., 156 NLRB 1236. 168 NLRB No. 115