Telonic Industries, Inc.

588 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Telonic Instruments, a Division of Telonic Indus- tries, Inc. and International Union of Electrical, Radio And Machine Workers, AFL-CIO, Petition- er. Case 25-RC-3686 November 5, 1968 DECISION AND CERTIFICATION OF RESULTS OF ELECTION BY MEMBERS FANNING, BROWN, AND JENIGNS Pursuant to a Stipulation for Certification upon Consent Election, an election by secret ballot was conducted on March 5, 1968, under the direction and supervision of the Regional Director for Region 25, 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 111 eligible voters, 106 ballots were cast, of which 51 were for, 52 against the Petitioner, and 3 ballots were challenged. The challenged ballots were sufficient in number to affect the results of the election. On March 8, 1968, the Petitioner 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 28, 1968, issued and duly served upon the parties his Report on Challenged Ballots and Objections to Election, recom- mending that the Petitioner's objections Nos. 2 through 6 be overruled, that objection No. 1 be sustained, and therefore that the election be set aside. The Regional Director further recommended that the 3 challenges be sustained. Thereafter, on July 10, 1968, the Employer filed timely exceptions to the Regional Director's Report insofar as it recommended that the election be set aside on the basis of objection No. 1, which alleged that the Employer did not comply with the Excelsior rule.' 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 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 concern- mg 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. In accordance with the stipulation of the parties, we find that the following employees of the Employer constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act: All production and maintenance employees includ- mg technicians, working group leaders, plant cler- ical employees, and draftsmen at the Employer's Beech Grove, Indiana, establishment; but excluding all office clerical employees, professional employ- ees, engineers, guards and supervisors as defined in the Act. 5. The Board has considered the Regional Direc- tor's Report, the Employer's exceptions, and the entire record in the case, and finds as follows:2 Objection No. 1 is based upon the Employer's omission of four names from the list submitted pursuant to the Board's Excelsior requirement. The Regional Director, taking account of the one vote margin by which the Union failed to receive a majority, concluded that, in the circumstances, the Excelsior rule should be applied strictly. He therefore recommended that the election be set aside because of the Employer's failure to submit a complete list. We disagree. As indicated, the unit consisted of approximately 111 eligibles. On February 13, 1968, the Employer made a timely submission of the eligibility list containing the names and addresses of all but four eligibles. That list was prepared from the Employer's Christmas list. The four employees were also omitted from the Christmas list because their personnel files were either being processed or unavail- able at the time that it was being compiled. On March 2, the Employer's Personnel Director instructed a clerical employee to check the list that had been submitted against personnel records and monthly work sheets in order to develop an accurate list for use in both the election and as a basis for the Employer's mailing of a campaign letter that day. The clerical, in updating the list, added the names of Bennett and Harnishfeger, who had been previously omitted, and included them in the Company's mailing made that day. On the morning of March 5, the day of the election, the Employer's Personnel Director discovered, for the first time, that these names had been omitted from the list submitted. At the preelec- tion conference, the Personnel Director informed the Union and Board agent of these omissions. The Union then indicated that two other names (Reeves and Curson) had also been left off the list. However, the 1 Excelsior Underwear Inc., 156 NLRB 1236 Director's recommendation sustaining the 3 challenged ballots and 2 No exception having been taken thereto , we adopt the Regional overruling Petitioner 's objections 2, 3, 4, 5, and 6.. 173 NLRB No. 87 TELONIC INSTRUMENTS 589 Union made no request that the election be deferred and all four employees voted without challenge. In the period following adoption of the Excelsior rule the Board has had occasion to consider a variety of fact situations in which employers have made some attempt, but failed to comply strictly with the requirements of that rule. In these cases, the Board, in deciding whether the noncompliance was sufficient to warrant a second election, has repeatedly stated that there is "nothing in Excelsior which would require the rule stated therein to be mechanically applied."3 Although the submission of an inaccurate or incom- plete list may in other circumstances furnish grounds for setting aside an election we are not satisfied that such a result is warranted here. In this case, not only were the omissions limited to 4 of about 11 I eligibles, but upon discovery of the omissions by its supervis- ory personnel, the Employer took the first opportun- ity available to inform the Region and Union that the list was not complete. In view of these factors, together with the absence of any suggestion in the evidence that the errors were attributable to gross negligence or an unwillingness on the Employer's part to afford the Union full access to all eligible employ- ees, we find that the Employer substantially complied with the requirements of the Excelsior rule. Accord- ingly, contrary to the Regional Director, we shall overrule Petitioner's objection No. 1. As the tally of ballots shows that the Union has not received a majority of the valid votes cast in the election, we shall certify the results of the election. CERTIFICATION OF RESULTS OF ELECTION It is hereby certified that a majority of valid votes have not been cast for International Union of Electrical, Radio and Machine Workers, AFL-CIO in the election held herein, and that said Union does not constitute the exclusive representative of the em- ployees in the unit found appropriate within the meaning of Section 9(a) of the National Labor Relations Act, as amended. 3 Program Aids Company, Inc., 163 NLRB No. 54, United States Consumers, Inc, 164 NLRB No. 158 ; Taylor Publishing Company, 167 NLRB No 50.