Fuchs Baking Co.

720 DECISIONS OF,NATIONAL LABOR RELATIONS BOARD Fuchs Baking ' Co. and General Sales Drivers & Allied Employees Union Local 198, an affiliate of International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, Petitioner. Case 12-RC-3087' February 24, 1969 DECISION ON REVIEW, ORDER, AND DIRECTION OF SECOND ELECTION BY MEMBERS FANNING, JENKINS, AND ZAGORIA Pursuant to a Decision and Direction of Elections issued by the Acting Regional Director, Region 12, on July 12, 1968, an election by secret ballot was conducted on August 14, 1968, under the direction and supervision of the Regional Director for Region 12, among employees in the separate unit found appropriate. The tally of ballots showed that, of approximately 246 eligible voters, 213 cast ballots, of which 110 were for the Petitioner, 8 for the Intervenor,2 and 90 cast against the participating labor organizations. There were 2 void and 5 challenged ballots. On August 20 and 21, 1968, the Intervenor and the Employer respectively filed separate objections to conduct affecting the results of the elections. The Regional Director caused an investigation to be made and on October 10, 1968, issued his Supplemental Decision, Order, and Certification of Representative, in which he overruled the objections in their entirety. The Intervenor and Employer each filed timely Requests for Review of the Regional Director's Supplemental Decision. On November 14, 1968, the Board, by telegraphic Order, granted the Intervenor's Request for Review and denied the Employer's. 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. The Board has considered the entire record in this case with respect to the issues under review and 'In the companion Case 12-RC-3105, the Board has previously denied the Employer's Request for Review of the Supplemental Decision therein. Said case is hereby severed for purposes of this decision. 'American Bakery & Confectionery Workers' International Union, AFL-CIO, Local 249, was permitted to intervene on a basis of current showing of interest in the unit. makes the following findings: The Intervenor's objection to the election is based on the Employer's failure to furnish an eligibility list, with names and addresses of eligible employees as required by Excelsior Underwear Inc., 156 NLRB 1236. In view of the fact that the Intervenor secured only 8 out of 215 ballots cast, less than 4 percent of the total ballots cast, the Regional Director concluded it would not effectuate the purposes of the Act to set aside the election in which the Petitioner obtained a majority of the votes. We disagree. It is true, as the Regional Director notes, that the Board does not mechanically apply the Excelsior rule, and under certain circumstances has not insisted upon literal adherence to its requirement. But in those cases, the employee lists were actually furnished by the employer and the Board regarded such submission under the circumstances to be substantial compliance with the rule.3 However, here there was no submission by the Employer whatever. In our opinion, to make the election results the controlling factor in determining whether to excuse the lack of compliance with the rule subverts one of its very purposes, viz, "to provide the Union [or unions as the case may be] with the opportunity to inform the employees of its position in order that the employees may intelligently exercise their right to vote."4 Accordingly, we hereby sustain the Intervenor's objection and we shall set aside the election conducted herein and direct a second one. ORDER It is hereby ordered that the election conducted herein on August 14, 1968, be, and it hereby is, set aside. [Direction of Second Elections omitted from publication.] 'See Program Aids Company, Inc, 163 NLRB No. 54, United States Consumer Products, 164 NLRB No 158, and Taylor Publishing Company, 167 NLRB No 50. 'United States Consumer Products, supra. '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 this Notice of Second Election. The Regional Director shall make the list available to all parties to the election . No extension of time to file this list shall be granted by the Regional Director except in extraordinary circumstances Failure to comply with this requirement shall be grounds for setting aside the election whenever proper objections are filed Excelsior Underwear Inc , supra 174 NLRB No. 108